ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 25 of the Equal Status Act, 2000, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Respondent, a member of the Traveller Community, submitted her complaint, under Section 21 of the Equal Status Act, 2000, to the WRC on 7 June 2018. The complaint relates to the alleged denial by the Respondent, a B&B operator, of access to pre-booked accommodation.
The Complainant is seeking a favourable finding to the effect that the Respondent is in breach of the Equal Status Acts, 2000 – 2015.
Summary of Complainant’s Case:
The Complainant was attending her uncle’s funeral which was taking place on 20/21 February 2018. The Complainant’s sister made a booking with the Respondent’s B&B establishment through Booking.com and had received an email confirmation of the booking.
According to the Complainant, they were advised to book into the B&B between 2:00 and 4:00 pm on the date of arrival (20 February 2018). The Complainant submitted that the debit card used for the booking was pre-authorised prior to check-in.
The Complainant as stated that she and her sister arrived at the B&B at about 4 PM, after travelling from Dublin. The Complainant stated that when they arrived at the B&B, parked their car and went to the entrance of the premises. According to the Complainant, both the site and front entrances were locked.
In further evidence, the Complainant stated that she spoke to a person, who was renting a place connected to the building and he advised that they had missed the staff of the B&B by a few minutes. At this point, the Complainant’s sister rang the owner of the B&B and he advised that he would be with them in a few minutes to let them in. However, the Complainant stated that an hour passed and the owner did not appear.
According to the Complainant, as she was experiencing difficulty with her back, she could not stand for long periods, so she went to sit in the car. The Complainant stated that they tried, on numerous occasions, to contact the owner again but the calls were ignored. The Complainant stated that, as it appeared obvious that nobody was going to come to check them in, they had to seek alternative accommodation.
The Complainant stated she was left outside the B&B with her bags for approximately 1.5 hours. The Complainant stated this was humiliating as people, who were passing by could see that they were waiting. The Complainant also stated that she found it distressing because she knew she had to go to the mortuary and had to freshen up in the car. According to the Complainant, they had arrived early at the B&B in order to prepare themselves for attending the funeral.
According to the Complainant’s evidence, no further communication was received from the Respondent, who appears to have completely ignored the situation.
In conclusion, the Complainant submits that she did not get access to the B&B and was treated less favourably than others would have been in the situation. According to the Complainant, this treatment was attributable to membership of the Traveller Community.
Summary of Respondent’s Case:
The Respondent did not attend the Hearing, despite having been formally notified of same. In addition, following the oral Hearing, the Respondent was provided with a copy of the Complainant’s submission, as presented at the Hearing, and was given a period of four weeks to submit a response should he wish to do so. No response or submission was received from the Respondent.
Consequently, the only evidence available to me for consideration from the Respondent’s perspective was a copy of the ES.2 Form, which was sent to the Complainant’s representatives by the Respondent’s legal representative, in July 2018. The ES.2 Form was submitted in evidence at the Hearing by the Complainant.
According to the ES.2 Form, the Respondent submitted that he was the license holder but not the owner of the premises in question. According to the Form, the premises was owned by the Respondents daughter who had died in a number of weeks earlier.
The ES.2 Form also stated that the Respondent, in line with all publicans in the town were contacted by An Garda Síochána and ordered to close their premises on 20 February 2018.
Findings and Conclusions:
Section 38A of the Equal Status Acts (2000 – 2011) 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 the Complainant to provide evidence from which it may be presumed that prohibited conduct has occurred. This concept is commonly referred to as establishing a prima facie case. 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  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 prima facie case of discrimination, the Complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.
With regard to the within case, I am satisfied that the Complainant is a member of the Traveller Community and is therefore covered by the relevant discriminatory grounds – Membership of the Traveller Community.
Secondly, based on the evidence adduced on behalf of the Complainant and the evidence contained in the ES.2 Form, as completed by the Respondent, I am satisfied that, having made an advance booking for the Respondent’s B&B establishment, the Complainant was denied admission, on her arrival at the appointed time. I am also satisfied that, based on the Complainant’s evidence, a telephone conversation took place with the Respondent which clearly established that the Complainant had arrived at and was seeking access to the premises.
Consequently, based on the above I find that the Complainant has successfully established a prima facie case and that, as a result, the burden of proof switches to the Respondent.
In the light of the Respondent’s failure to attend the Hearing, the only evidence which was submitted by or on behalf of the Respondent, is that contained in the ES.2 Form, as referred to earlier. That evidence establishes that the Respondent’s rationale for denying the Complainant access to her pre-booked accommodation was as a result of a purported order from An Garda Síochána to close his premises on the day in question.
In response to this, the Complainant submitted, in evidence, at the Hearing, a letter from the Superintendent’s Office (An Garda Síochána – Loughrea Division). This letter confirms that no instruction issued from An Garda Síochána to Public Houses in the town to close the premises on 20/21 February 2018.
The evidence contained in the above correspondence clearly contradicts the Respondent’s evidence is submitted in the ES.2 Form. However, notwithstanding that fact, I am of the view that even if such an order had issued, it would not have precluded the Respondent from allowing the Complainant access to the accommodation that had been pre-booked.
Having carefully considered all the evidence adduced, I am satisfied that, on the balance of probabilities, it is most likely that the Complainant was denied access on the premises on the basis that she was a member of the Traveller Community. I am also of the view that this treatment is less favourable than that which might have been afforded, in similar circumstances, to a person who was not a member of the Traveller Community.
Consequently, I find that the Complainant has been discriminated against on the ground of being a member of the Traveller Community and that by engaging in this act of discrimination the Respondent is in breach of the Equal Status Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant was discriminated against, contrary to Sections 3(1) and
3(2)(i) of the Equal Status Act 2000, by the Respondent on the grounds of her membership of the
Consequently, I award the Complainant the sum of €2,500 in compensation for the effects of the discrimination involved.
Dated: August 7th 2019
Workplace Relations Commission Adjudication Officer:
Equal Status Act