Martin Kiely, Patrick McInerney & Peter O'Reilly (Represented by the Traveller Visability Group) V Moran Silversprings Hotel
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a hotel
Mr. Kiely, Mr McInerney and Mr. O'Reilly each referred a claim to the Director of Equality Investigations under the Equal Status Act 2000 in respect of an incident which took place on 11/8/01. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, 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.
Summary of the Complainant's case
Mr. Kiely had been in the Hotel a number of months earlier and had experienced no difficulties. The three complainants went to the respondent premises with their wives. Their wives got out of the van and entered the hotel through the main door. The gentlemen went to park the van. Their wives were not addressed by security staff. When the complainants tried to enter via the door leading directly to the bar they were refused and told that there had been trouble with some of their lads the previous week. When the older security man arrived he said that they would not be allowed in because they had been drinking. When the Gardaí arrived it was noted that the three complainants appeared sober.
Summary of the Respondent's Case
There had been an incident in the bar the week previous to this incident, involving Travellers and non-Travellers. The people responsible have never been identified. Security staff were advised after the incident to be extra vigilant. When the three complainants arrived it was clear they had been drinking and they were refused on that basis. The bar manager, who was called to the door after the refusal, stated that the complainants became loud and aggressive and although they calmed down when the Gardaí arrived, the decision had already been taken not to allow them in. The senior security man stated that the group remained calm throughout and that there was no aggression. The hotel pointed out that if the complainants had been in previously and had an enjoyable night, then the hotel could not be seen as discriminatory.
Conclusions of the Equality Officer
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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and 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. It was agreed that the Traveller ground applies to the complainants and that a refusal took place. This satisfies (a) and (b) above.
In relation to (c) above, the respondent stated that the refusal was based on the intoxication of the complainants. An independent witness, the Garda who attended the incident, stated that during his conversation with the complainants they appeared sober to him. The respondent has provided no other direct reason for the refusal. The respondent did mention an incident which occurred on the premises the week previously involving Travellers and non-Travellers. The complainants were not identified as being involved. After the incident security staff were warned to be extra vigilant. The security man present at the hearing agreed that there may have been mention of the previous incident to the complainants as part of the refusal.
There is also contradictory evidence from the security man refuting the allegation of aggression made by the manager that the complainants may have been loud and aggressive. However, even if it was the case that they were loud and aggressive, it is agreed that this took place after the refusal and therefore cannot constitute a reason for the refusal, only for not re-considering it. This aggression was not witnessed by the independent Garda witness. Therefore, the respondent has failed to justify their refusal to reconsider the refusal of service and does not appear to be in line with their normal practice.
I am satisfied, on the balance of probabilities, that the complainants were perceived as Travellers, that their wives used a different entrance and were not addressed by security staff, and that the incident the previous week was mentioned to the complainants as the initial reason for the refusal. I am also satisfied that non-Travellers were not refused on this basis and that the complainants were refused access in an over-eager attempt to avoid an incident similar to that which had occurred the previous week and in which they were not involved. I find that by refusing Travellers on that basis, and not non-Travellers, this constitutes less favourable treatment on the Traveller ground in line with (c) above and that the complainants have established a prima facie case of discrimination on that ground.
As mentioned above, the respondent's only direct reason for refusal was the complainants' alleged intoxication. This was disputed by the Garda witness's record of the incident. In relation to the service of the complainants' wives, or one of the complainants on a previous occasion, demonstrating that discrimination could not have occurred, please see Equality Officer's case ref DEC-S2003-120 for a discussion of this issue. The service of some Travellers does not automatically mean that discrimination cannot occur on the Traveller ground. In the absence of a reasonable and sustainable explanation for the refusal of the complainants, I find that the respondent has failed to rebut the established prima facie case of discrimination.
In accordance with Section 42 of the Equal Status Act, 2000, I am satisfied that the respondent, the Moran Silversprings Hotel, is vicariously liable for the actions of its duty manager and those of the security staff.
Mr. Martin Kiely DEC-S2003-156
I find that the refusal of the complainant, Mr. Martin Kiely, by the Moran Silversprings Hotel, on 11/8/2001 was discriminatory on the Traveller ground.
Mr. Patrick McInerney, DEC-S2003-157
I find that the refusal of the complainant, Mr. Patrick McInerney, by the Moran Silversprings Hotel, on 11/8/2001 was discriminatory on the Traveller ground.
Mr. Peter O'Reilly, DEC-S2003-158
I find that the refusal of the complainant, Mr. Peter O'Reilly, by the Moran Silversprings Hotel, on 11/8/2001 was discriminatory on the Traveller ground.
I order the payment of €600 by the respondent to each of the complainants as compensation for the effects of the discrimination.
19th December 2003