Margaret McDonagh Snr. & Margaret McDonagh Jnr. (represented by Mr. Patrick Enright, Lees Solicitors) v White Sands Hotel, Kerry (represented by Mr. Michael Dowling, Solicitor )
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 delegated the complaint to me, Dolores Kavanagh, 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.
1.1 This dispute concerns complaints by Margaret McDonagh Snr. and Margaret McDonagh Jnr. that they were discriminated against by the respondent 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) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they were refused admission to the respondent premises on 8 September, 2001. They were told that the restaurant was closed but pointed out a notice indicating that meals were served all day. They could also see people seated inside the premises who were eating. The complainants contend that the real reason for the refusal of admission was their membership of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondent states that he does not discriminate against any group in providing service in his establishment. On the day in question the restaurant was full and the security staff had strict instructions not to allow any person in. The complainants saw people eating in the bar which is accessed from a different entrance and to which they had not sought admission.
4 Evidence Provided by the Parties
4.1 Complainants' Evidence
Ms. Margaret McDonagh Jnr., Complainant
Ms. McDonagh stated that:-
- She and her mother, Ms. McDonagh Snr. went to Ballyheigue on 8 September for Pattern Day. It was the first time that they had visited the town . At around lunch hour they became hungry and made enquiries as to where they would get a meal. They were directed to the White Sands Hotel.
- They made their way to the hotel where they saw other, non-Travellers enter the hotel. They also saw, through a window, people who were seated inside in the bar area and who were eating.
- As they went to enter the hotel the doorman stopped them and told them that the restaurant was closed. They pointed out to the doorman that there was a sign in the window to the effect that meals were served all day.
- The doorman insisted that the restaurant was closed and would not allow them in.
- Neither Ms. McDonagh Snr. nor Ms. McDonagh Jnr. said anything to the doorman about their belief that they were being turned away because of their Traveller status.
- The doorman is known to Ms. McDonagh Jnr. She has met with and spoken to him a number of times at fairs, car boot sales etc. in the locality. He is aware that she is a Traveller and it is for that reason that she and her mother were refused entry to the restaurant. Mr. O'Sullivan had told her once in conversation that he lived near Travellers and would not say something like that if he was not aware of her Traveller identity.
- When she and her mother left the hotel they went to a chipper across the road for lunch where they were served.
Ms. Margaret McDonagh Snr., Complainant
- Ms. McDonagh confirmed her daughter's account and stated that it was her belief that the doorman assumed that she and her daughter could not read the sign about the meals because he assumed that they were illiterate.
4.2 Respondent's Evidence
Mr. James Browne, Respondent.
Mr. Browne stated that:-
- There is no policy in his premises to exclude Travellers or any other group. On the day in question each year the town of Ballyheigue is teeming with people. It is a local tradition that the local wells are blessed on that day and mass is said in the open air by the local bishop. There is a festival type atmosphere on that day and a large number of traders etc. visit Ballyheigue.
- The name "Pattern day" comes from "Patron Day" and is celebrated on the same date each year. It is the only date on which the hotel restaurant is pre-booked by specific known groups, specifically the local and visiting priests. Approximately 20-30 seats are available for members of the general public and when these are full the security staff are instructed not to admit anyone else. The hotel kitchen could not cope with any more customers.
- In the course of the lunch hours 12.30-3.00 p.m. if a table becomes free the hotel receptionist notifies the security man that this is the case and some people may then be admitted. The entrance to the bar from the hotel lobby is locked on that day to avoid confusion and patrons are admitted to the bar area by another, separate entrance. Another security man is on duty at the bar entrance and he monitors numbers gaining admission to the bar. Bar food is served in the bar.
- The level of demand for the hotel restaurant facilities is exceptional on Pattern Day. Business is lax on other occasions to the extent that the restaurant may not be opened and meals are served in the bar only.
- The respondent accepts that the complainants are Travellers, but this has no bearing on the refusal of admission on Pattern day. All persons seeking admission to the restaurant on that day, when the restaurant was full, were turned away.
- The sign regarding meals being served all day is inaccurate and really only refers to high season. It would not apply for example from October on as business is slack then and meals would only be available at certain times. Also on Pattern Day hot meals would not be available in the bar during lunch hour. Only tea, coffee and sandwiches are served up to 3.00 p.m. Bar food (hot meals) would be available after that time.
- Mr. Browne explained that the complainants could not have clearly seen into the bar of the hotel as the glass in the bar window is heavily frosted in a decorative fashion. They would have glimpsed the people inside but not clearly seen what they were doing. ( Following the Hearing Mr. Browne submitted large photographs of the establishment clearly showing the type of glass describes by Mr. Browne)
Mr. John O'Sullivan, security officer, witness for the respondent.
Mr. O'Sullivan stated that:-
- On Pattern Day 2001 he was on security duty at the hotel entrance when the complainants approached. Ms. Margaret McDonagh Jnr. is known to Mr. O'Sullivan as he had met with and spoken to her on earlier occasions. He was not ever aware that she was a member of the Traveller community and did not recall ever mentioning to Ms. McDonagh Jnr. that he lived near Travellers.
- It was irrelevant whether the complainants are Travellers as he had strict instructions on the day in question not to admit anyone to the hotel restaurant. When the complainants approached him he told them that the dining room was full. He did not state that meals were not being served, he stated that the restaurant was closed. While he accepted that this could have been misconstrued by the complainants, his intention in saying it was simply to state what he knew to be a fact, that the restaurant was closed to the public because it was full.
- The complainants had not enquired about the availability of food in the bar and Mr. O'Sullivan had not directed them to it
- On that day, 8 September, 2001, Mr. O'Sullivan did not admit anyone to the premises during lunch hour unless they were resident in the hotel and provided evidence to him that this was the case, e.g a room key.
Mr. Nigel Kelleher, Enkel Security Services, witness for the respondent.
Mr. Kelleher stated that:-
- His firm has been providing security services to the hotel for 12-15 years, specifically on Pattern Day when extra security is required for the reasons already stated by Mr. Browne. The position is as stated by Mr. Browne. The security firm takes its instructions from its clients and consults with clients such as Mr. Browne each year and passes the instructions to the security officers.
- Mr. O'Sullivan has been on duty on Pattern Day for 10 years approximately and is aware of the standing instructions for that day.
- The hotel owner has never given instructions to exclude any particular group of people. The security staff are required to maintain order and keep the doorways to the premises clear and keep people moving.
- Mr. Browne requested that the entrance to the bar from the hotel lobby be locked and that admission to the restaurant be restricted/prevented due to the high demand for the restaurant services on the day.
5 Matters for Consideration
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1) provides that discrimination shall be taken to occur where: (a) "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
5.3 Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not."
5.4 Section 5 (1) states that "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 ". In this particular case the complainants claim that they were discriminated against because they are members of the Traveller community, while the respondent maintains that there was no discrimination.
5.5 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 of the complainant by the respondent
(c) Evidence that the treatment received by the complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Conclusions of the Equality Officer
6.1 I am satisfied that the complainants are members of the Traveller community in accordance with (a) at 5.5 above and this is not disputed by the respondent. The complainants have provided evidence that they were refused admission to the respondent's premises, which has been confirmed by the respondent, and this fulfills (b) at 5.5 above.
In relation to key element (c) at 5.5 above the complainants state that non-Travellers were admitted to the premises and were seated in the bar, eating meals, on the date in question when they were refused admission. However, neither complainant had ever been to Ballyheigue on Pattern Day previously and had never before attended at the hotel seeking admission to the restaurant. While they state that non-Travellers were admitted to the hotel they provided no evidence to show that any individual was admitted to the restaurant on the date in question at the time they were seeking admission. If others were admitted to the hotel it is quite possible that they were residents of the hotel and were admitted on that basis, as they were entitled to be.
The hotel owner and the witnesses on his behalf have given a clear, compelling account of the exceptional circumstances prevailing in Ballyheigue on Pattern Day each year, on which day the hotel is exceptionally busy. While the doorman could have directed the complainants to the bar for tea/coffee and sandwiches he was not obliged to do so. I accept that the complainants glimpsed through the windows of the hotel bar which allow partial sight of the premises and saw people in the bar apparently having a meal. This does not contradict the respondent's account, in which he stated that the bar was open to the public via a separate entrance and that snacks/light meals were being served there. It appears however that the complainants did not seek information about, or entry to, the bar. They requested admittance to the restaurant. On the day in question I am satisfied that access to the restaurant was universally restricted.
I am not satisfied, on the balance of probabilities, that the complainants were treated less favourably than any other individual seeking to gain admission to the respondent's restaurant on Pattern Day, 2001. Comments of the Equality Officer
When door/security staff refuse entry to people without explanation, or worse, with an explanation which is manifestly wrong as in the instant cases, this may easily be construed as discriminatory and may then lead to the respondent incurring the trouble and expense of defending proceedings. It may be in respondent's best interests therefore, as a matter of good practice, to encourage door/security staff, when there is a straightforward and non-discriminatory reason for refusal , to explain to those being refused what that reason is.
In the cases at hand a great deal of time and effort might have been saved by everybody concerned had the security man simply taken the time to explain to the complainants that the restaurant was, in fact open, but was full due to the exceptional demand on Pattern Day, rather than to tell them that the restaurant was closed, when it obviously was not. Equally the security man might have shown the complainants the courtesy of explaining to them that sandwiches etc were available in the bar as an alternative. His actual response to the complainants was less than helpful, and, had the exceptional circumstances of Pattern Day not been a consideration, might well have given rise to an inference of discrimination.
The complainants have not established a prima facie case of discrimination. The finding is in favour of the respondent.
17 July, 2003