The following is a lengthy extract from the Findings in the related case AD-00026060.
“The Legislation and related matters of fact which provide context
ThePurpose of the Equal Status Act is ‘An Actto promote equality and prohibit certain types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.’
The hearing was provided with little by way of arguments on behalf of the Complainants in relation to the services provided by the Respondent related to the complaint. However, it seems relevant to be aware of the statutory provisions under which the service provider operates.
For the purposes of this case, hotel accommodation is a service available to the public generally.
The provision of hotel accommodation to the public comes under the domain of the hospitality industry as it is now commonly described including by representatives of that sector.
The word hospitality is defined as:
‘the friendly and generous reception and entertainment of guests, visitors and strangers.’ Those who stay in a hotel are generally described by such establishments as guests-who may also be strangers.’
In Ireland, Hotels are regulated under the 1963 Hotel Proprietors Act. Section 3-(1) of that Act (for which any update or amendment of its terms was not found) and which states:
‘The proprietor of a hotel is under a duty to receive at the hotel as guests all persons who, whether or not under special contract, present themselves and require sleeping accommodation, food or drink and to provide them therewith, unless he has reasonable grounds of refusal.’
The following extract from the Dail debates from 1962 at the Second Stage of the Seanad debate 6th February 1963 is interesting and, it might be said, as relevant today as it was then:
It has been argued that in modern times the duty to receive all comers is an anachronism and ought to be abolished. I am unable to accept that point of view. It seems to me that, if a proprietor of a premises holds himself out as prepared to cater for all and sundry, it is only reasonable that he should be bound to receive every person who is fit to be received and who is willing to pay for the services and the facilities of the hotel. I am sure the House will agree with me that it would not be in the public interest of the tourist industry that hotels should be able to reserve their hospitality for selected guests.
In the case under consideration, there is no question but that the Complainant was in a fit state and that she was willing to pay for the services and facilities of the hotel.
The use of the word ‘duty’ in the 1963 Act is significant and implies an obligation on those who choose to establish themselves as purveyors of a hotel service to provide their service to all and sundry if their would-be guests can meet the terms ‘fit’ and demonstrate a willingness to ‘pay.’
The term ‘reasonable’ in the 1963 Act is noted but it is difficult to see how refusing a person who is fit and willing and able to pay and who, as in this case, having stayed previously at the hotel without any reported incident, and who has pre-booked the accommodation would comply with the terms ‘reasonable’ given the totality of the section of the Act and the clear intent of the legislators.
Acknowledging that this is not a case under the Act of 1963, nonetheless both the terms of the legislation and the fact that the complainant had previously stayed at the hotel without incident and was willing and able to pay for her accommodation leads to the conclusion that a refusal of accommodation by the Respondent on grounds of insisting on a particular form of electronic payment does not appear to be in any way consistent with the terms of the 1963 Act in accordance with which the Respondent offers a particular service to the public.
The Complainants solicitor spoke of his own experience, both before and after this incident occurred of never being refused accommodation on the basis that he did not present a credit card for payment. Adjudication Officers do not live in a box and real-world factual experience can be relevant to a case to be decided. As someone who has travelled extensively in Ireland, mainly on business over many years, my experience would be the same as the Complainants solicitor. Recognising that the modes of payment and the use of electronic payments has drastically altered since 1963, the key issue which one usually encounter is an ability to pay or to be able to demonstrate an ability to pay, sometimes in advance. Taking a hold on a card by way of a preauthorisation so that additional items can be charged to the card would be a regular occurrence. Or where a debit card and not a credit card is offered for payment then the full balance is deducted at the time of check in. That said, as payment is sometimes made in advance or by credit card at check in the question of the form of payment does not arise.
In circumstances where the overarching legislation of 1963 applies to the establishment providing the service, where the ‘would be’ guest was willing and able to pay and, in this instance, the Complainant made it clear to the hotel manager that she is a member of the traveller community, who are a protected group under the Equal Status Act, examination of the basis of the Respondents defence is required. It is necessary to examine the booking condition as a neutral term which places the person who is a person with a protected characteristic at no disadvantage compared to a person who does not have that characteristic.
Section (2) (i) provides the grounds which apply to consideration of this case:
‘that one is a member of the travelling community and one is not’
As the complainant is a member of the travelling community, she is covered by that protected ground in section (2) (i) of the Act.
In defining discrimination, Section 3(1) (c) applies in this case.
‘where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared to other persons unless the provision is objectively justified by a legitimate aim and the means of achieving that aim is proportionate and necessary’
As can be seen, whereas the Act of 1963 provides the terms reasonable for the refusal of accommodation, under EU Legislation any neutral provision must satisfy a three-part objective test-a higher bar than the Act of 1963. The question or test is whether the seemingly neutral measure is in fact neutral when applied to members of the Traveller Community in Ireland or whether it is in a measure which indirectly discriminates against members of that Community. This is the issue to be examined in the case of this Complainant as the person who made the booking. (Section 3(1)(b) features in the related cases.)
The neutral provision in this case is the Hotel Policy which through the booking site booking.com in this case notifies any person making a booking and who is to pay at the hotel that the method of payment accepted by the hotel is a credit card.
The terms notified to the Complainant when she made the booking and against which she was required to tick a box confirming acceptance of the Hotel terms included:
‘Credit cards accepted are VISA, Mastercard and American Express. Guests must present a credit card under their name at check in.’
The full terms related to payment contained on the booking form were as follows:
Page 2: ‘You’ll pay when you stay at Charleville Park Hotel & Leisure Club’
Page 3: Under the heading Is everything correct? Update credit card
Page 4: Prepayment You don’t need to prepay. However, the property may take a deposit from the card you booked with. This is a routine procedure to verify that it is valid and hasn’t been lost or stolen. The hold is temporary, and the amount will be returned to you in full.’
Page 5: Payment: You have now confirmed and guaranteed your reservation by credit card. All payments are made at the property during your stay unless otherwise stated in the policies.
This accommodation provider accepts the following forms of payment:
American Express, Visa, Euro/Mastercard.
The hotel points to the following text in the confirmation email. It is understood that this wording was shown to the Complainant at the hotel on the basis that she had agreed to this term when ticking the Ts and Cs of booking.
‘Credit cards accepted are American Express, Visa, Euro/Mastercard. Guests must present a card under their own name on check-in.’
The Complainant had made the booking using a debit and not a credit card.
There is nothing in the detailed confirmation on line which informs the person who has made the booking that the failure to present a credit card will result in a refusal to provide accommodation even if another form of payment is offered i.e. cash or debit card. That information was only conveyed at the hotel. There may be a serious question as to whether a person can rely on a measure which does not fully reveal the consequences of failing to meet the terms, but as said by the Complainant Solicitor, this not a case of contract law but of alleged discrimination and it is against the terms Equal Status Act that the complaint is to be decided.
The precedents provided on behalf of the Complainant are not considered relevant to this complaint-where the central issue is whether the presence of an apparently neutral provision in a policy discriminates against members of the Traveller Community.
The Defence of the Neutral Measure or Provision.
The first test under section 3(1) (c) is met by the presence of the neutral provision in that the policy applies to all who want to stay at the hotel.
The second test to be considered is whether that neutral provision would place a member of the Traveller Community at a particular disadvantage compared to other persons.
The Supreme Court in Stokes v Christian Brothers High School  26 ELR 113 held that in considering whether particular disadvantage had been established, the Director of Equality Investigations or a court were required to carry out an analysis of the extent of any disadvantage experienced by a protected group by reason of the ostensibly neutral measure in order to determine whether that level of disadvantage was significant or appreciable.
The question of disadvantage was to be considered by comparing the differential effect of the measure on members of the Traveller Community compared with those who members of the Traveller community were not (R. v Secretary of State for Employment ex parteSeymour Smith (no 2)  1 W.L.R 435 considered).
It was a matter for the decision maker, within the bounds of rationality, to identify the relevant group of persons for the purposes of conducting a comparative analysis of the differential effect of the impugned provision on members of the Traveller community.
In R v Secretary of State for Employment the House of Lords applying a preliminary ruling of the CJEU, held that indirect discrimination cases disadvantage can best be established by a statistical analysis of a pool of those who can comply with a PCP compared to those who do not.
Following the lead set by the Supreme Court in Stokes it is necessary to compare the differential effect of the neutral provision or measure on members of the Traveller Community. The wider group for the purposes of comparison is the wider population of Ireland in terms of holding credit cards and the wider populations of Ireland in terms of economic status is so far as this is measurable. The most readily available statistic in terms of economic activity and therefore access to measurable income is the level of unemployment in the total population and among Travellers.
The Respondent did not provide any statistical or factual objective information which would support their claim that the neutral provision would not discriminate against members of the Traveller Community compared to others. The economic status of the other people, up to fifteen who were also turned away in accordance with the hotel policy is unknown. The testimony of the hotel manager that this group of people included Travellers was not supported by any evidence. Reference was made to a man who was able to provide a credit card when four men believed to be travellers booked into the hotel after the policy was enforced. I am satisfied from the testimony of the manager to the hearings, that when management in the hotel or hotel group decided to enforce the measure, they did so know that some people would not be able to obtain and therefore provide credit cards for economic reasons.
In support of the complaint, Mr Feeney, solicitor, provided a study entitled Irish Travellers -Socio Economic Aspects and Housing-CSO-Central Statistics Office-Research conducted for the St Stephens Green Trust
Relevant extracts are as follows:
There were 10653 travellers in the labour force in 2016 and of these 8541 were unemployed, giving an unemployed rate of 80.2 per cent. 2112 persons were at work in 2016.
The labour force participation rate among travellers was 57% compared with 61.1 percent for the general population.
Among females 972 were at work while 2938 were looking after the home, representing 30.4 per cent of Traveller women aged 15 or over.
20% of the traveller community households own their own home compared with 67.6% of the general population.
Information regarding the employment status of travellers seems to be available only from the Census, as used in the above report.
In response to information requested post the hearing on the employment status of the Complainants-their representative replied as follows:
Person A was unemployed and in receipt of Job Seekers benefit at the time of making the booking and attendance at the hotel.
Person B held two part-time jobs being 1 HSE primary Health Care Worker with the Traveller Community and a shop assistant.
Person C was an old age pensioner and in receipt of the Department of Social Welfare Pension. This is the Complainant in this case.
From this information 66% of the three women refused accommodation by the Hotel in this case were unemployed or retired and 33% was an active member of the labour force.
Consistent with the requirements set by the Supreme Court in the Stokes Case I felt obliged to conduct some basic analysis of the type of information regarding the use of credit cards in Ireland and the usual terms on which credit cards are provided by the main financial institutions. The following and any other information cited by way of information is readily available on line:
Credit card figures in the Republic of Ireland reached around 1.7 million in 2017 a number comparable to previous years. They made up roughly 25 per cent of payment cards. Debit cards were found more often in the country as that year there were more than 5 million of these cards. (Statista)
The adult population of Ireland in 2020 was 3.6-3.7 million
There is nothing which indicates a significant change in the number of credit card holders since 2017. Allowing that some credit cards will be used by a household or a couple, these figures suggest, at a minimum, between 46 and 47% of the adult population have immediate access to a credit card. The actual number who have indirect access to a credit card through another person in the same household is likely to be higher than these percentages.
Bonkers.ie provides information on the terms required across various providers for those seeking or holding a credit card:
What do I need to apply for a credit card?
To apply for a credit card, you must be over 18 and have an annual income over a certain amount usually in the region of at least €16000 a year. You’ll need to have a good credithistory too, which means well-managed finances and not too many other loans and debt. You may also need to provide proof of identification and proof of address during the application process.
Child benefit is generally not regarded as a form of income.
It is reasonable to conclude from these figures that at least 46% of the adult population have the visible financial means to be approved for a credit card.
None of the three women refused accommodation have credit cards.
Whereas the total number of unemployed in Ireland in 2017 was of the order of 10% of the population aged 15-65, the census information from 2016 gives an unemployment rate among travellers of 80%. The number of unemployed adults as a percentage of the adult population in 2019 stood at 11% There is nothing which would suggest that the proportion of unemployed travellers fell to such an extent that the huge disparity in the relative rates of unemployment reduced significantly.
The Complainant was unemployed in September 2019.
Based on the statistical information on economic and unemployment status provided on behalf of the Complainant, combined with her own economic status and the basic information sourced regarding the general use of and terms for credit cards in Ireland is there a sufficient basis to conclude that the neutral provision would place a member of the travelling community at a particular disadvantage compared to other adults in Ireland? And so, to decide this question, what is to be made of the available information.
One means for establishing what is known as disparate impact is to identify a pool of individuals who are potentially impacted by the disputed measure. This is usually used and available in a workplace setting. In a society this is more difficult. The neutral provision may have more impact in certain types of hotels. It is not unreasonable to conclude for example that those seeking to stay in a five star or luxury hotel would be able to provide a credit card if essential for accommodation. The ideal pool in this case would have been an analysis of others who obtained accommodation at the hotel since the policy was enforced compared with those who were turned away and, if it could be established, how many of each group were members of the Travelling Community. But this type of information would not be available and indeed gathering such data could be a dubious endeavour in terms of identifying people with a particular protected characteristic. The suggestion of the Complainants solicitor in this regard to the effect that some means of identifying or self-identifying as a Traveller could be utilised, was surprising.
In the absence of an easily measurable pool therefore the question remains whether the impugned PCP constitutes an obstacle in the way of protected persons having the protected characteristic. See Grundy v British Airways PLC.
The wider pool of people that is the population of Ireland and the financial basis for access to credit cards remain the only viable statistical information on which to ground the Decision to conclude whether or not the neutral measure is an obstacle to members of the Traveller Community in obtaining the service provided by the Respondent and/or whether that policy places them at a particular disadvantage compared to others who are not members of the Traveller Community .
In the absence of any other information provided by the Respondent or any real challenge by them to the statistics provided by the Complainant those statistics combined with what does public information suggest that at least 80% of the Traveller Community would have difficulty meeting the requirements of reputable financial institution to obtain a credit card based on their employment status which is a sound measure of their visible and demonstrable income.
Based on the unemployment statistic, some 90% of the adult population would have been at work and therefore much more likely to have been able to satisfy the same institutions and to obtain a credit card.
Using the same yardstick, it is reasonable to conclude that while 46% of the adult population have credit cards that a higher number have indirect access and that members of the Traveller Community would not be able to obtain credit cards to anything like the same extent.
Choice is a factor for people who are and are not members of the Traveller Community and so while there will be people in both categories who will decide not to seek a credit card even though they would qualify for one in financial terms, it is not possible to factor this into the equation. However, the conclusion remains consistent, that the proportion of people who could exercise this choice in the Traveller Community having regard to their economic and employment status will be much smaller than in the population as a whole.
The finding from the available statistical information is that the neutral measure enforced by the Hotel in this case has a disparate effect on the Complainant as a member of the Traveller Community compared to other adults who are not members of that community.
Undoubtedly it can be said there are many economically disadvantaged groups in Ireland defined by location, disability, race and long-term unemployment, poor education and personal history. Some of these are protected characteristics, others are not. But it is not unreasonable to conclude that of those adults who seek to stay in hotels, members of Traveller Community as a protected group under the Equal Status Act would have a disproportionate difficulty in meeting the terms of the neutral provision to obtain and to hold a credit card. And the Complainant is a case in point.
Based on the established facts, it is found that, in accordance with Section 38A of the Equal Status Act, it may be presumed that the policy of the hotel in refusing accommodation to the Complainant on the basis of her not being able to provide a credit card was an act of discrimination against her as a member of the Traveller Community.
There remain certain arguments made on behalf of the Respondent which must be considered.
The remaining test which must be applied in a case where there is a neutral provision is the test of whether the measure is such that it is objectively justifiable unrelated to a protected ground.
In the first instance it is to be noted that no reason for the policy was given to the Complainant when she was refused accommodation. A statement that this is policy is not a reason. No document existed at the time which set out the reasons for the policy. This was decision made at management meetings and then enforced by hotel management. The ‘policy’ was the requirement to pay with a credit card. The absence of a reason and a written policy are important. This led the Complainant not unreasonably, to conclude that it was because she was identified and, as the manager said in his evidence, had identified herself as a Traveller on the day. And at that point any person in his position should have realised that she was a person who might have significant difficulty meeting the terms of the unwritten, unexplained policy. And she was being blamed for agreeing to a term which neither stated that she would be refused accommodation for failing to produce a credit card or explained any intent of the proprietor if she failed to comply with their policy. Even if she had read the entire form before she ticked the box, nothing would have told her the consequences of not being able to provide a credit card at check in. The Respondent cannot legitimately rely on the ticking of the box by the Complainant on the booking form as a defence in the circumstances.
In terms of legislation, Article 2(2)(b)(i) of Directive 200/78/EC provides that an indirectly discriminatory PCP is unlawful unless:
“that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’
The Burden of Proof Directive 97/80/EC at Article 2(2) states\;
“For the purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of members of one sex unless that provision criterion or practice is appropriate and necessary and can be justified by objective reasons unrelated to bias.’
The very absence of a written policy or an objective reason given to the Complainant at any stage, could lead to the conclusion that the Respondent cannot rely on any objective grounds not provided to her at the time of the refusal to accommodate her at the hotel. Neither was this ground put forward in the ES2 form when returned to the Complainant:
“It is hotel policy that a credit card be produced at reception when booking into the Hotel. This is a standard requirement in all of our hotels and believe this to be the case in all Hotels in the country. The Complainant did not produce a credit card in compliance with the policy.”
Despite the complete absence of anything resembling a reason for the policy set out in the to the Complainant at the time of booking, when she attended at the hotel and in the ES2 reply, the reasoning put forward by the Respondent as an objective ground is fully considered in arriving at a Decision. That reason provided at the hearing- a concern stemming previous damages or failures to pay for goods meant the measure was introduced so that the hotel could make a charge against the credit card which it was contended they could not do against a debit card.
Objectively the hotel is entitled to protect themselves as much as possible against unpaid bills and damages. This is a legitimate aim.
However, any legitimate objective must be proportionate most commonly known as the Bilke-Kaufhaus Gmbh v Weber Von Hartztests: a legitimate aim and the means of achieving the aim are appropriate and necessary.
The Respondent has met the first of the tests established by Bilke.
Moving to the test of means and whether they were appropriate and necessary, the hotel manager admitted that not all damages could be covered by insisting on a credit card. For example, the hotel damage of €12000 which significantly contributed to the decision to enforce the policy could not be covered in this way. Neither was it entirely clear if a payment could only be taken against a credit card and then every credit card and not against a debit card. Whether an advance payment could be made in cash or by way of a reasonable cash deposit at check in or if an advance refundable payment could be taken from a debit card were not options open to the Complainant. Providing access to the minibar/fridge only to those holding a credit card or requiring a deposit for use of the minibar were not made available as options. While accepting that the manager is familiar with this policy based on his experience in other hotels and in Germany does not render it objective and proportionate especially when many hotels do not operate the same policy and presumably many of them have the same experiences with guests, losses and damage.
Even if another hotel in Ireland or hotels in other countries operate the same practice, does not render that practice lawful under the Equal Status Act.
Members of the Travelling Community are a group in Ireland who have protected status to prevent discrimination against them on that ground under the Equal Status Act.
The blanket insistence on a credit card cannot be accepted in circumstances where the failure to provide that card is then used as the means of turning away a person from the hotel-one who is and was known to be a member of a protected category and who, because of their poor economic status which is well known and understood in Ireland, is more likely than not to be at a disadvantage compared to others in the adult community as a whole in terms of fulfilling the condition imposed by the Hotel. And when other means of achieving the legitimate aim could have been offered to the Complainant but were not.
The application of the policy of refusing accommodation based on a failure to present a credit card is not found to be appropriate and proportionate. The Respondent has failed to meet the three-tier test in the case of a neutral measure on objective grounds.
The complaint of discrimination on grounds of membership of the Traveller Community succeeds.
This finding takes account of the overriding nature of the business operated by the Respondent which cannot be overlooked or disregarded as unimportant. And all businesses carry a degree of risk. The decision to refuse accommodation to the Complainant meant that by default she was being held responsible for the actions of others and the business took no risk. There were no reasonable grounds for the application of the policy in her case.
The overall finding in this case is that the policy introduced by the Hotel of refusing accommodation to a person who could not provide a credit card and applying it to the Complainant Anne Marie Power discriminated against her as a member of the travelling community. The Complainant has established a prima facie case of discrimination which the Respondent has been unable to rebut based on objective grounds which were appropriate and proportionate as a means of achieving a legitimate aim.”
The forgoing is a lengthy extract from the related Complaint ADJ-26060 concerning the person who made the booking. Essentially the arguments and the evidence presented was the same in both cases. The exception came when the Complainant solicitor provided the economic status of each Complainant in response to a query from the undersigned. The Complainant in this case is a pensioner in receipt of the State Pension.
On behalf of the Complainants it was contended that Section 3(1) (c) applies. No distinction was made regarding the application of this Section to the Complainants. Certainly, all three are members of the Traveller Community. It is accepted that none of the three have credit cards. However, when the ‘particular disadvantage’ element found in the case of the Complainant in ADJ-26060 i.e. the application of the unemployment statistics to the Traveller Community which is far greater than the comparable number in the population. Therefore, the majority of adult Travellers lack the visible means to support an application for a credit card. As she is an old age pensioner it is difficult to see how the contention that Section 3(1) (c) applies in the case of this Complainant can be sustained. Literally thousands of people in Ireland fall into this category and the majority of those people are not members of the Traveller Community.
The Complainants solicitors presented a set of statistics concerning members of the Traveller Community. However, it would be virtually impossible and unsound to attempt to extrapolate that wide-ranging analysis out into an automatic connection with the ability of members of the Traveller Community to obtain a credit card. That runs the risk of falling foul of the standard set by the Supreme Court in Stokes.
While common sense says that a person whose abode is on the side of the road or at least is not fixed and who suffers from ill health and is poorly educated will have considerable difficulty in obtaining a credit card, it is the factor of unemployment related to visible income among the members of the Community and which applies to that Complainant which is the determining factor in AD-00026060. That factor does not apply to the Complainant in this Decision.
What is significant in the case of this Complainant is that she did not make the booking. That was made on her behalf by a person who had before her the terms and conditions. Aside from the fact that those conditions did not express the meaning or intent of the Respondents policy regarding the requirement to have a credit card-the Complainant in this case was associated with the booking and by extension the terms under which the Respondent operated. Those terms or policy were found to be discriminatory when applied to members of the Traveller Community based on the statistics around the comparable figures for unemployed persons and specifically the Complainant who made the booking.
Section 3(1) (b) of the Equal Status Act applies in this case:
For the purposes of this Act discrimination shall be taken to occur - ….
(b) where a person who is associated with another person –
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, or has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination
The Complainant in this case had no role in making the booking. She was excluded from the hotel because the person who made the booking and with whom she was associated as part of that booking was the subject of discrimination on grounds of her traveller status. By virtue of that association the Complainant in this case was treated less favourably than any person who is not a member of the Traveller Community and who would not be placed at a particular disadvantage by the terms of the neutral provision, the existence of which discriminated against the person with whom she was associated.
Significant Compensation justified in this case to act as a deterrent such that the Respondent will review the policy in light of this decision. In awarding compensation in this case, the fact that the hotel turned away an elderly person with health issues, one who had travelled some distance to the hotel represents a significant impact based on discrimination. It has proved impossible to square the lack of compassion and inflexibility towards this person with a defence of the hotel premises against damage and the possibility of an unpaid bill. In this case the nature of the business operated by the Respondent as a provider of accommodation in the hospitality industry seems to have been lost in its entirety.
The sum of €8000 compensation is considered justified in the circumstances.