ADJUDICATION OFFICER DECISION
Clement Flanagan (Hotel Manager)
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 complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
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 Complainant relates to the alleged denial by the Respondent, a Hotel, 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:
It was submitted on behalf of the Complainant that she travelled from Dublin on 20 February 2018 to attend her uncle’s removal on that date and his funeral the following day. It was submitted that the Complainant was accompanied by her sister on this journey.
According to the evidence submitted on behalf of the Complainant, they made a booking with the Respondent’s Hotel at 5:51 PM on 20 February 2018. It was submitted that this booking, which was made by the Complainant’s sister, was done through Booking.com. it was further submitted that the email confirmation of the booking was received and that the card used for the transaction was preauthorised.
It was submitted that the Complainant and her sister arrived at the hotel shortly after 6 pm, having come directly from the mortuary following the uncle’s removal. According to the evidence submitted on behalf of the Complainant, they noticed that the car park to the front of the hotel was almost entirely empty. It was further submitted that the Complainant and her sister walked into reception and spoke with the receptionist. At this point they were informed that there had been a mistake and that the hotel was fully booked.
The Complainant stated that at this stage she requested a list of local hotels and also enquired if the restaurant was open. It was further stated that the Complainant was informed that the restaurant was open, and food was being served. It was further stated that when the Complainant and sister walked into the restaurant, they noted that there was only one other group eating there. According to the evidence submitted, while the Complainant and her sister are waiting for their food, they noticed that the receptionist had briefly appeared in the restaurant and was observed speaking to other staff while at the same time looking at the Complainant and her sister. It was further submitted that the receptionist then walked over to the table and asked the party if they had been served yet.
According to the Complainant’s submissions, when paying for their meal, she gave a card to a male waiter who took the card out of the restaurant. It was submitted that the waiter was gone for about 15 minutes before returning to the table with the card And the card machine. The Complainant confirmed that payment for the meal then took place.
The Complainant contends that her card was taken out of the restaurant to reception in order to doublecheck if the sisters were in fact members of the Traveller Community. In this regard, the Complainant stated that her surname was the same as that of her deceased uncle and would have identified her as a member of the Travelling Community. The Complainant also pointed out, in this regard, that her sister, who had made the accommodation booking, had a different surname.
The Complainant further submitted that the chattering of the staff and the removal of her card prior to payment made her feel that she had done something wrong or that the staff were suspicious of her and her sister. The Complainant further contends that the suspicion was unwarranted and was solely as a result of their membership of the Traveller Community.
Reply to the Respondent’s submission:
In reply to the Respondent’s claim that the hotel was fully booked, the Complainant contended that as both the car park and the restaurant were almost entirely empty, they found it highly unlikely that the hotel could have been fully booked.
In addition, it is submitted on behalf of the Complainant that the Respondent’s Hotel is a large and busy establishment. It was stated that the tourist review website, TripAdvisor, shows that each month the hotel receives a number of reviews from previous patrons. Evidence was presented on behalf of the Complainant showing that in January 2018 there were five reviews and in March 2018 there were three. However, it was submitted that there were none for February 2018. It was further contended that there are no other months, in recent times, where the Respondent’s hotel received zero reviews on the TripAdvisor website.
It was submitted on behalf of the Complainant that this represents significant circumstantial evidence that the Respondent was not fully booked in February 2018.
The Complainant submitted detailed evidence with regard to Booking.com and how their online booking service works. This evidence contained, inter alia, the following points:
· Booking.com does not sell the accommodation.
· When a client makes a booking and Booking.com they enter into a direct contractual relationship with the accommodation provider. Therefore, any claim regarding the stay policy or the performance of services is addressed directly between the customer and the provider.
· All information displayed on the Booking.com website is based on that submitted by the providers of the service who update information, including availability, at their sole discretion and at their own pace, through a direct access facility provided by Booking.com, who endeavour to update their (Booking.com’s) website in real-time.
Based on the above, it was submitted on behalf of the Complainant that any claim that Booking.com is in anyway responsible or that they should not have taken the booking is entirely impossible, as Booking.com operate on the basis of information provided by the service provider.
It was further contended on behalf of the Complainant that by not updating the Booking.com system, the Respondent benefited from being able to pick and choose customers over those two days. It was further stated that Booking.com does not allow businesses to filter customers on the basis of second name or ethnicity. Consequently, it is submitted on behalf of the Complainant that when the Respondent realised that the booking had been made for a member of the Traveller Community, they decided to claim that the hotel was fully booked.
It is submitted on behalf of the Complainant that she and her sister wanted to go to their uncle’s funeral and were comfortable in the knowledge that they had somewhere to stay. Following the removal, they were hoping to arrive and rest for the night, before attending the funeral the following morning. It was further submitted that they were not expecting to be treated the fashion in which they were on arrival at the Respondent’s premises.
It was further submitted that the actions of the Respondent and their employees were in fact discrimination on the grounds of membership of the Traveller Community. It was further contended that this discrimination caused considerable stress and unease for the Complainant during this difficult time for her and her family. In addition, it was stated that the suspicion with which she was treated makes it overbearingly obvious just how discriminatorily the Complainant was treated by the respondent hotel.
In conclusion, it was submitted that the Complainant does not believe the contention that the Hotel was fully booked, when there were only six patrons in the restaurant, very few cars in the car park and it being off-peak season in a relatively quiet part of the country.
Consequently, the Complainant requested a favourable finding that the Respondent was in breach of the Equal Status Acts, 2000 – 2015.
Summary of Respondent’s Case:
In their response, issued in July 2018 through their solicitor, to the Complainant’s Form ES1, the Respondent submitted that the matter amounted to a simple misunderstanding. It was submitted that the hotel was fully booked on 20 February 2018. It was further submitted that the booking, placed by the Complainant, with Booking.com should not have been processed as there were no rooms available at the Hotel on the night in question.
At the Hearing, the Respondent’s representative stated that the Hotel had only 21 rooms and these had all been sold on the night in question. It was further submitted by the Respondent that there were three factories in the local area, employing over 1200 people and that the hotel receives a lot of repeat business on a week to week basis. The Respondent’s representative reiterated that, on the night in question, all rooms had previously been sold.
According to the Respondent’s evidence, they use 3/4 websites, including Booking.com, to whom they sell 2/3 rooms maximum. It is further submitted by the Respondent that on the day in question Booking.com had over sold their allocation of rooms. It was further submitted that the receptionist did not have the booking on the Hotel system. The Respondent stated that when a booking is made through Booking.com, the hotel gets a confirmation some hours later. However, as the premises does not have high-speed broadband, this can often lead to further delays in receipt of confirmations.
In conclusion, the Respondent’s representative stated that they did not discriminate against the Complainant and, in this regard, refer to the fact that the Complainant and her sister were served with food. However, it was reiterated that as they did not have a room available on the night, their inability to provide accommodation to the Complainant was not an act of discrimination.
The Respondent submitted in evidence that the Hotel has two separate car parks, one to the front and one to the rear of the premises. It is further submitted that the car park to the front of the premises has 30 spaces while the remaining 320 are in the car park at the rear. According to the Respondent’s representative, the vast majority of the cars parked on that night would have been in the rear car park and, therefore, out of sight of the Complainant.
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 direct 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 responses provided by the Respondent, I am satisfied that, having made an advance booking, when the Complainant arrived at the hotel she was informed that a mistake had occurred and no room was available.
Based on the circumstances outlined above, it was firstly necessary to consider the validity/credibility of the Respondent’s position that an unfortunate error had occurred, whereby the Complainant’s booking was received and confirmed by Booking.com, when in fact the hotel was full at the time the booking was made. Having carefully considered all of the evidence adduced in this regard, I find it was reasonable for the Complainant to conclude that the Respondent’s position lacked credibility and was more likely based on the fact that the Complainant is a member of the Traveller Community.
Secondly, in this regard it was necessary to consider whether or not the Respondent or their employees engaged with the Complainant on her arrival, could have reasonably concluded that the Complainant and her sister were members of the Traveller Community. Once again, having carefully considered all aspects of the case, I am satisfied that, based on the balance of probability, it was most likely that the Complainant was identified, by the Respondent, as a member of the Traveller Community.
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.
The Respondent’s response to the claim of discrimination rests entirely on the contention that the Hotel was full, from an accommodation perspective, at the time the Complainant’s booking was made and that this was an error on behalf of the booking agent, Booking.com.
Having carefully considered the Respondent’s evidence in this regard, I find it somewhat unconvincing. In a context where, according to the Respondent’s evidence, the 21 bedrooms in the Hotel had been fully sold, one might expect a greater degree of activity both in the hotel and in the car park, than the Complainant’s evidence suggested existed on the evening in question.
Secondly, I find the Respondent’s contention that the booking agent, Booking.com, sold a room to the Complainant, at a point in time when all rooms were already sold, to lack credibility. Based on the Respondent’s own evidence, they release 2/3 rooms respectively to a number of booking agents. Clearly this takes place in a context where all of the Respondent’s rooms have not been sold and they are seeking to increase the possibility of sales by allocating the rooms to third party booking agents.
Consequently, I would be of the view that unless/until they have received confirmation from the booking agent with regard to the status of their allocation of rooms, the responsibility rests with the Respondent not to sell rooms that have been allocated to these agents. Additionally, I find, on the balance of probability, that it would be unlikely that the booking agent would sell rooms that had not been allocated to them.
Therefore, taking all of the above into consideration I find that the Respondent’s contention that the provision and confirmation of the booking to the Complainant was an error on behalf of the third party booking agent is not well founded.
Having carefully considered all the evidence adduced, I am satisfied that, on the balance of probabilities, it is most likely that the Complainant’s previously booked and confirmed accommodation was cancelled 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.
With regard to the Complainant’s claims that she was further discriminated against by the Respondent in relation to the provision of and the payment for food, I find these are not well founded. Firstly, I am satisfied that the Complainant and her party were not denied service. Secondly, I cannot find anything unusual or untoward with the fact that the Receptionist checked with them that they had been served.
Finally, in this regard I cannot accept that the waiter’s removal of the Complainant’s credit card from the restaurant to the reception area constituted an act of discrimination. While it is increasingly more common to have the POS machine brought to the table when paying for food, I find the Complainant’s contention that the removal of the card, in this instance, took place in order to establish that she was a member of the Traveller Community, is somewhat lacking in credibility.
As has been set out in the claim in relation to the cancelling of the accommodation booking, the act of discrimination in that case had already taken place, as the service was denied immediately on arrival. Consequently, I find no reason why having already concluded that the Complainant was a member of the Traveller Community and having already provided her with food, it would be necessary to remove her credit card to the reception area for further checking.
Consequently, having carefully considered all the evidence adduced in this regard, I find that the Respondent’s actions in relation to the provision of food and the taking a payment for same does not constitute an act of discrimination and that no breach of the Equal Status Acts has taken place in this regard.
Therefore, taking all of the above into consideration I find that the Complainant has been discriminated against on the ground of being a member of the Traveller Community in relation to the cancellation of the previously booked accommodation 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’s 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