Complainant

Respondent

Parties

Husain  Zaidi

Riu Plaza The Gresham Hotel

Representatives

Edward Kelly Holmes O'Malley Sexton Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00062158-001

12/03/2024

The Complainant attended the premises of the Respondent on 3 December 2023 at which time he alleged he was discriminated against by a person, organisation/company, who provides goods, services or facilities. 

The Respondent denied the allegations and stated that the Complainant was not discriminated against in any way and nor was he denied a service. 

In his complaint form, the Complainant stated that on 3 December 2023 at approximately 5:15pm in the Hotel Riu, Gresham Dublin, he experienced a deeply humiliating incident where he was unjustly asked to leave by one of the hotel employees.  He stated that while patiently waiting to meet a friend in the lobby of the hotel (she had contacted him to say she was caught in traffic), he found himself targeted as a potential thief by a staff member of the hotel.  He stated that the employee whose name he believed to be Mr Suraj Tahacul, approached him and bombarded him with question after question as to why he was waiting there.  He stated that despite his repeated attempts to explain his purpose there, he was asked “why haven’t you ordered anything, are you a hotel resident?, do you have a reservation?, who are you waiting for?, where is your friend?”

The Complainant stated that he tried to reply saying that he was waiting for his friend and that it would be rude to order without her.  He stated that Mr Suraj Tahacul spoke to him in a condescending tone and kept interrupting him while he tried to explain to him the reason why he was there.  He stated that there were other people present in the lobby, including a young family, who had witnessed what had happened.  He stated that Mr Suraj Tahacul then indicated that luggage had gone missing and told him that they had cameras around and that they were looking for suspicious people.  The Complainant stated that he asked him what he was implying by saying and he stated that again Mr Suraj Tahacul interrupted him saying “I do not wish to prolong this conversation”.

The Complainant stated that one of Mr Suraj Tahacul colleagues then joined in the conversation as well and that while he continued to maintain that he was there to meet a friend, that didn’t seem to matter.  He stated that when he told Suraj Tahacul he would rather not wait in a place like this, Mr ST then asked him to leave, showing him towards the door in front of several other people. 

The Complainant stated that while he was there others in the lobby were not asked by Suraj Tahacul  (or other staff), as to why they were there, nor were they asked to leave.  He stated that the entire episode was extremely humiliating and degrading for him.  He stated that the fact that there were others there who saw what happened, compounded his sense of embarrassment and injustice.  He further stated that he met his friend a couple of times in that very hotel for a coffee or for a meal but that he had never experienced anything like this before. 

The Complainant outlined that when his friend came into the hotel about five minutes after he was asked to leave by Suraj Tahacul she could not find him and she called him on his phone.  He stated that he advised her that he was waiting outside.  He explained to her what had happened and that she was extremely upset and asked him to come back into the hotel with her.  He stated that he was too humiliated to do so, so she went in to speak to a staff member to say that she was the person he had been waiting for.  He advised that while she was there, she tried to get an explanation as to why the incident had occurred but the staff member (who had not been involved in the incident), just informed her it was “policy”. 

The Complainant stated that he had sought an explanation as to why he was targeted and treated in this manner and he asked some very specific questions as follows:

·        “Are the public allowed to meet people in your hotel for a coffee or a meal?”

·        “Why wasn’t my particular reason for being there accepted by Suraj Tahacul?”

·        “Why weren’t others in lobby questioned as to whether they were residents?”

·        “Why were others in the lobby not informed luggage had gone missing?”

·        “Why were others in the lobby not asked to leave?”

·        “Why was I asked to leave when I gave a very reasonable explanation as to why I was waiting (and had been there only approximately 15 minutes)?”

The Complainant outlined that the response he received to his letter was very defiant in nature and that despite treating him unfairly, the Respondent had stated that he was making spurious claims about them and also threatened him further by saying that the employees in question, Mr Suraj Tahacul and his colleague, were exploring further options of taking legal action against him.  The Complainant acknowledged that the Respondent had sent their response via the ES2 form through registered post to him in January but that for various reasons he never received the letter and it was sent back.  He further stated that he acknowledged that a couple of points mentioned in their correspondence, the time he was present in the lobby and where he was seated, were correct.  However, he stated most of the other assertions made by the Respondent in the ES2 form was unfounded.  He stated that the same could be verified by viewing the CCTV footage for the said date. 

In conclusion the Complainant stated that the entire episode was deeply embarrassing and that the Respondent response to his complaint had left him feeling every more uncomfortable. 

By way of submission, the Complainant had submitted the following documents:

·        Complainant ES1 form and proof of postage

·        Follow up correspondence and its proof of postage

·        Response received from the Respondent

·        An Post receipt acknowledging delivery

·        His final response and proof of postage

In his ES1 form, the Complainant set out the details of his complaint which was the same detail as outlined in his complaint form to the WRC.  The Complainant’s ES1 form was dated 12 December 2023, however it was not signed by the Complainant, nor did it contain details of the ground under which he alleged he was discriminated against. 

I noted the Complainant correspondence dated 22 February 2024 to the Respondent, where he wrote to follow up in relation to his ES1 form.  He noted in that correspondence that he had not received a response to his correspondence and in light of this he was compelled to escalate the matter to the Workplace Relations Commission.

I noted the copy of the correspondence of 6th March 2024 from the Respondent to the Complainant (which was provided by the Complainant), confirming that the Respondent had issued a response to the complaint.  I will set out further detail in relation to this under the Respondent position below.

I noted the correspondence from the Complainant to the Respondent on foot of that correspondence acknowledging that for various reasons the Complainant had not received the Respondent response in their ES2 form. I noted that the Complainant acknowledged the accuracy of aspects of that response such as the timing of his visit and where he sat, however, the Complainant also set down that other assertions contained in that correspondence were unfounded and that he found the tone of the letter as threatening in nature. 

Complainant Closing Remarks:

The Complainant thanked the Respondent representatives for attending and stated that he appreciated them taking time out from their busy schedule to respond to the matter.

He stated that he had felt humiliated after what had occurred and that, as a result, he had made a complaint.  He stated that he felt intimidated by the threat of legal action in the Respondent initial response to his ES1 form. 

The Complainant advised that he had never spoken in any other language than English and that he had never said that a Pakistani person was better than an Indian person, nor had he said that Indian people and Muslim people don’t get along.

The Complainant stated that he understood and appreciated that Mr. McCracken didn’t want any guest to be upset but that he believed that on this occasion that is what happened.  He also stated that, “irrespective of how the case goes” he understood that Mr. McCracken was supporting his managers.

Witness evidence – Mr Zaidi:

The Complainant stated that on 3 December in the Gresham Hotel, he was due to meet a friend and he experienced a humiliating incident.  He stated that he was targeted as a potential thief when he was approached by a manager.  He stated that he was challenged by that manager who didn’t want to listen and indicated to him that he should leave. 

He stated that he was initially outside but that, as his friend was running late, he went inside and sat in the lobby.  He stated that after a time he was asked if he wanted to place an order and he explained that he was waiting for his friend.  He stated that a short while later he was then approached by the same manager and again asked if he wished to order.  He advised that he gave the same answer and explained that he was waiting for his friend.  He stated that he was then met with a series of questions in relation to if he wanted to book for a meal and his reasons for being there. He said it was then brought up about the missing bag and he was asked to leave and showed towards the door.  He stated that he couldn’t stay in all of the circumstances. 

He stated that he waited outside for his friend and that when she arrived she went directly into the hotel to meet him and that when she couldn’t find him she phoned him and he advised that he was waiting outside.  He stated that when his friend heard what had occurred, that she went inside and spoke to the staff member when she saw how upset he was.  He stated that she was the person who got the name of the manager that he was talking to and he was identified as Mr Suraj Tahacul.  The Complainant advised that he felt that the reason for the behaviour must have been due to his race because he could not see any other reason for the behaviour.  The Complainant stated that he had a valid reason for being there, that he was sitting opposite the elevator, that there was a young family also present and that he didn’t see anybody approach them.  He stated that they were a white family.  The Complainant outlined that there were others presents and that it was very busy as it was coming up to Christmas time.  He said he had been there twice before and that in the past there had never been a booking needed to waiting for a friend to join him for a meal. 

The Complainant also stated that he was saying that the Respondent discriminated generally, nor was he implying that it was common practice, however, he felt that on this one off occasion, he had been discriminated against.  He stated that he had made his complaint because he was humiliated.  He stated that in the Respondent’s response, a lot had been said about him and that it was loud and aggressive and he stated that Mr Tahacul was (bantu).  He stated that the young family were not having anything to eat either.  He stated that he was a proud Pakistani and that he is Indian and he holds an Indian passport which was issued in 2020. 

Cross examination of Mr Zaidi:

Under cross examination Mr Zaidi confirmed that he had initially waited outside for his friend but that when he learned that she was delayed he decided to wait inside.  He confirmed that he was not directed to a particular location by any member of the hotel staff but that the place where he sat was where he had been before and that he saw the vacant seat so he just simply sat there.  He confirmed that he had not needed a booking before. 

The Respondent put it to the Complainant that it disputed the length of time he was waiting.  The Complainant had stated that it was 15 minutes, where the Respondent held the view that he was waiting for approximately 30 minutes.  The Respondent also put it to the Complainant that the Respondent was acting in accordance with its service charter and the Complainant accepted that it was reasonable to ask if service was required, however, he did not accept that he should be approached to check if he was a resident.  The Respondent brought it to the Complainant’s attention that the reason he would have been asked if he was a resident was in order to allow him to move into an area reserved for residents.  The Respondent put it to the Complainant that Mr Tahacul had simply been seeking to ascertain if service was required and if he was resident, that there were lots of members of the public in place and that the only thing unusual about what happened on the day was the Complainant’s reaction.  The Respondent representative put it to the Complainant that from his own evidence, he had stated that he no longer wished to stay.  The Complainant responded that he had been met with a barrage of questions, that Mr Tahacul’s tone was condescending and that he kept interrupting him while he tried to explain his presence in the hotel.  He stated that Mr Tahacul had raised the case of the missing luggage, saying, “we are looking for suspicious people” and that he then went on to say “I don’t wish to argue” and at that point he asked the Complainant to leave. 

The Respondent representative put it to him that he had stated he no longer wished to stay.  The Complainant confirmed that yes, but that this was after Mr Tahacul had asked him to leave.  He stated that he came from a humble background and that he could not stay on the premises in the circumstances as he outlined.  He stated that at no point was he asked to move to another table.  He stated that Mr Tahacul had said to him “I don’t wish to argue with you” and then he asked him to leave the hotel.  He stated he remembers the incident clearly, like it was yesterday.  He stated that his friend saw him immediately after the incident and that he was humiliated and embarrassed and that he couldn’t possible forget what had occurred. 

The Respondent put it to the Complainant that Mr Tahacul and Mr Balchand were also impacted by the incident and that he had made very serious charges against senior managers to which the Complainant responded, “I am sticking by my word”.  He stated that it doesn’t matter what the outcome is, that he was there with the honest intention of meeting his friend.  The Respondent put it to the Complainant that there was nothing controversial in the questions asked of him on the day and that his repeated allegations of discrimination were not grounded.  The Complainant responded that there should be CCTV footage of the incident which would demonstrate what had occurred.  The Respondent asked the Complainant if he had requested a copy of that footage, to which the Complainant responded that he was not sure if he had requested it, but that he had referred to it.  The Respondent noted that there was no reference to it in the ES1 form, to which the Complainant responded that he was not certain if it was referenced in other documents.  The Respondent pointed out to the Complainant that there was a requirement under the Act to provide prima facie evidence of discrimination and the Complainant responded that his evidence was that he was the only person asked to leave. 

Witness evidence – Ms Erin Nugent: 

Ms Nugent confirmed that she was the friend who was meeting the Complainant on the day in question.  She confirmed that she was coming from an event in the Phoenix Park and that she was running late so she sent a text to advise the Complainant that she was late.  She stated that when she arrived she looked around but could not find him and that she then received a text to say that he had been asked to leave.  He advised her that he was outside and that when she met him, he told her what had happened. 

Ms Nugent confirmed that the Complainant had told her that he had been asked about the missing luggage, that he was very upset and didn’t want to go back into the hotel.  She confirmed that she went in and she spoke to the person at the door and she explained that she was the person that the Complainant was waiting for.  She also confirmed that in the past she had never had to order while waiting but that the person on the door kept saying that it was the policy of the hotel.  She stated that she repeated that she had never had to order while waiting and had never been asked to leave while waiting, but that she felt she was getting nowhere. 

Ms Nugent stated that she then went back to meet the Complainant and that she felt that he should make a complaint about what had happened.  Ms Nugent advised that she did ask at the time if they had any specific policies and she noted that she could see no obvious policies but one on the wall was brought to her attention.  She further confirmed that she was a regular customer of the hotel and that she often met family there who were staying in the hotel and that she had never had to have a reservation in the past.

Cross Examination of Ms Nugent:

Ms Nugent confirmed under cross examination that she was not present for the incidents described by the Complainant and that she just saw the after effect of the incident on the Complainant.  She confirmed that she was reliant on his account of what had occurred.  She further confirmed that in his text messages to her about what had occurred, that there was no reference to race contained in those messages, simply that he was shocked at having been asked to leave.  Ms Nugent confirmed that in general she would speak very highly of the hotel and that generally she received excellent service, but she noted that her experience was based on her being a white woman and that she could not speak for others.  The Respondent representative asked Ms Nugent if she felt it was discriminatory to ask a customer if they required service.  She stated that from her long experience as a customer of the hotel, not once did it ever come up that she was asked to order within a timeline.  She stated that she meets lots of people in the hotel and that it’s quite normal for her to wait for people in the hotel and that never in the past had anything like this occurred. 

In response to a question from the Respondent, Ms Nugent confirmed that she didn’t recall asking about the missing luggage when she went into the hotel to speak to staff.  The Respondent noted that the text messages sent to her also did not include the issue of the missing luggage, to which Ms Nugent responded that the text messages were brief at the time as the Complainant knew she was in close proximity.

The Respondent noted that the Complainant’s complaint under Section 21 of the Equal Status Act, 2000, alleged discrimination on the grounds of race and also alleged harassment by the Respondent. 

The Respondent outlined that it had a staff of over 200, of which 32 different nationalities were represented therein.  The Respondent submitted that accordingly it put particular emphasis on diversity, integration and ethics, both through i) policies and procedures which are implemented and form part of the terms and conditions of all employees and are contained in the employee handbook and ii) the training that all staff are required to undergo.

The Respondent submitted that the Complainant attended the hotel at around 7:14pm on 3 December 2023 and that he sat in the writers bar and lounge.  The Respondent noted that this area is designated for use by paying customers or hotel residents. 

The Respondent outlined the following sequence of events:

·        That the Complainant was sat in the lounge for approximately 30 minutes and that during that time he had headphones in his ears and had not ordered food or drink.  He was approached by host staff on two occasions who asked if he wished to order anything, but he did not do so.  The Respondent noted that staff approaching customers to take orders is a matter of good practice and is in line with the hotels guest service charter which requires that “guests must be approached within three minutes of sitting down”. 

·        That when the Complainant had not ordered and had remained sitting in the lounge for an extended period, this was brought to the attention of the manager Mr Tahacul.  Mr Tahacul approached the Complainant and explained that the area of the hotel that he was sitting in, was reserved for paying customers or hotel residents wishing to order food or drinks.  The Complainant, in a loud and aggressive manner, told him, “why do you all keep bother me about ordering all the time?”  Mr Tahacul explained the hotel policy around this area being reserved and on being informed that the Complainant was waiting to meet someone, Mr Tahacul offered to book him a table in another area of the hotel.  The Complainant then spoke in Urdu and questioned Mr Tahacul as to his nationality, asking if he was Indian and intimating that this was why Mr Tahacul approached him.

·        That Mr Tahacul repeated the hotel policy to the Complainant and advised that as the hotel was busy, every table in the lounge was required for paying customers and hotel patrons.  The Complainant, again in a loud and aggressive manner, questioned why he could not remain where he was and why he had been repeatedly been asked to order.  The Complainant told Mr Tahacul to “remember you are a foreigner in this country”.  At this time Mr Balchand, another manager in the hotel, heard the raised voice of the Complainant and could see he was interacting with Mr Tahacul.  Mr Balchand approached the Complainant and further explained that he could remain at the table if he ordered, or if not, he was being asked to leave the table.  The Complainant did not say he wanted a table booked for him, and he continued to question why he could not stay at the table.

·        That at this point Mr Tahacul decided, due to the aggressive and intimidating behaviour of the Complainant, to ask the Complainant to leave the hotel.  The Complainant said he would be back and when he returned he would want to speak to a senior manager, and at that point he left the hotel.

The Respondent submitted that the Complainant lodged an ES1 form on 12 December 2023, claiming discrimination on the grounds of race, as well as claiming harassment and victimisation.  This complaint was responded to by the Respondent by way of an ES2 form in January 2024, owing to an issue with delivery of that form, it was not received by the Complainant until March 2024.  The Respondent submitted that within the ES2 form of the Respondent, while reference was made to the hotel supporting the two managers following this incident with the Complainant, that they were “reviewing options available to them within the Irish legal system”, prior to deciding if they would take legal action, no such legal action was taken and instead the Respondent supported the managers, both of whom had been deeply affected by the incident and the aftermath of same, particularly Mr Tahacul who felt embarrassed by having his nationality openly questioned in the busy lounge area of the hotel, something likely witnessed and overheard by his colleagues. 

The Respondent submitted that given the diverse workforce within the hotel and the various races and religions of the customers that enjoy the services of the hotel on an ongoing basis, the Respondent prided itself on the standards it upholds for staff in relation to equality, diversion, integration and ethics, both in terms of their treatment of work colleagues and their treatment of guests of the hotel.  The Respondent provided a copy of the hotels Diversity and Inclusion policy, it’s Equal Opportunities and Dignity and Respect at Work policy and its code of ethics.  The Respondent confirmed that these policies form part of the terms and conditions for staff of the hotel and are contained in the employee handbook. 

The Respondent submitted that these policies clearly show the commitment on the Respondent in ensuring that all staff understand and apply the necessary standards in terms of equality, diversion, integration and ethics.  The Respondent confirmed that Mr Tahacul attended dignity, equality and respect at work training on 11 October 2023 and again on 15 October 2024 while Mr Balchand attended the same training on 12 October 2023 and again on 15 October 2024.  The Respondent submitted that given the training provided to staff and the robust policies in place to ensure all staff in the hotel understand and apply the necessary standards in terms of equality, diversity, integration and ethics, it weighed heavily against the Complainants allegation of discrimination on race grounds and his allegation of victimisation and harassment. 

The Law:

The Respondent submitted that it was satisfied that the Complainant was wholly incapable of raising a prima facie case of discrimination.  The Respondent noted that the Complainants claims of discrimination on the grounds of race, whereby he alleged that he had been subjected to less favourable treatment by the Respondent, in the provision of services, and noted that the facts as presented by the Complainant, taken at the highest, did not meet the burden of proof required by Section 38A (1) of the Act.  The Respondent noted that the Act states: “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”. 

The Respondent noted that it is only where the Complainant can establish a prima facie case of discrimination on the grounds of race that the burden of proof shifts to the Respondent.  The Respondent submitted that relying on the Complainants complaint form, there were simply no facts from which it may be inferred that prohibited conduct had occurred, so as to shift the burden of proof onto the Respondent.  The Respondent relied on the much quoted dicta from Valpeters V Melbury Developments Limited in support of his position that the Complainant had failed to shift the burden of proof.  The Respondent noted that in that case the Labour Court, in its determination, held that: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule.”

The Respondent also cited the case of Mary Byrne V Manager/Board of Management, Woodenbridge Golf Club where the Adjudication Officer commented on the relevant burden of proof to be met by a Complainant: “Section 38A of the Equal Status Act sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised”. 

The Respondent submitted that the Complainant was incapable of showing that he had been treated less favourable than another person is, has been, or would be treated, in a comparable situation, based on any ground of discrimination.  The Respondent submitted that therefore the Complainant is incapable of showing discrimination within the meaning of the Act and in addition he had failed to disclose any comparison.

The Respondent submitted that in terms of the Complainant’s assertion that he was “targeted”, in being asked if he intended to order food or drink, and that other people at tables in the lounge were not being asked by staff, the Respondent stated that this assertion was denied.  The Respondent submitted that at the time the lounge was busy and the Respondent was satisfied that all other tables in the lounge with customers and hotel residents, would have been approached by staff to have their order for food and drink taken, in line with the guest service charter, in a similar manner to which the Complainant was approached on at least two occasions, seeking for him to order food and drink, prior to the managers becoming involved. 

The Respondent submitted that it was important to note that the Complainant was not refused service by hotel staff at any point in that time, and that in fact the opposite was the case as they had actively approached him and queried if he wished to order food and drink, as per the guest service charter.  The Respondent submitted that in this regard, the Complainant was not treated differently to any other person in respect of the application by the hotel of guest service charter while sitting in the lounge area of the hotel.  The Respondent submitted that when approached by Mr Tahacul about whether he wished to order or whether he would move to alternative seating while he waited, the Complainant became aggressive and acted in an intimidating manner. 

The Respondent submitted that the Complainant was asked to leave by Mr Tahacul, but that this was purely down to his own aggressive and intimidating behaviour towards the manager, and not due to any other reason and the Complainant had not put forward any prima facie evidence to suggest otherwise. 

Victimisation:

The Respondent submitted that in terms of the claim for discrimination on the grounds of victimisation, this was provided for under Section 3 (2) (j) of the Act, and that to prove victimisation in the circumstances of this case, the Complainant would have to show that he was treated less favourably as a result of lodging the equal status complaint, or giving notice of such a complaint to the Respondent.  The Respondent noted that it would be necessary under Section 38A of the Act for the Complainant to establish prima facie evidence of such victimisation in order or the burden of proof to shift to the Respondent to establish such victimisation did not happen.  The Respondent noted that the Complainant appeared to attribute no specific facts in his complaint form to the victimisation claim and for this reason, the Respondent respectively submitted that the Complainant had failed to establish a prima facie case of discrimination on the victimisation ground and accordingly the complaint should fail.

Harrassment:

In relation to the claim of harassment, the Respondent noted Section 11 (5) of the Act which defined harassment as: “any form of unwanted conduct related to any of the discriminatory grounds, and ….. being conduct which in either case has the purpose or effect of violating a persons dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. 

The Respondent submitted that insofar as the Complainant claimed that he felt humiliated by staff of the hotel approaching him to request if he wished to make an order for food and drink, and by the manager later approaching him about sitting in the lounge area and not ordering food and drink, the Respondent submitted such approaches by the staff were in line with the guest service charter, and were intended to be of assistance to the Complainant and to enhance his experience in the hotel, so as to ensure he received prompt and friendly service.

The Respondent submitted that it appeared that the Complainant took exception to these approaches and that this was evident by his initial response to Mr Tahacul when he approached him to query if he was a guest or a customer intending to order, as would be required if he intended to remain seated in the lounge area of the hotel.  The Respondent submitted that indeed Mr Tahacul offered to allow him to wait elsewhere in the hotel so as to free up the table he was at in the lounge for customers who did intend to order food and drink at the time, however, this offer was rejected by the Complainant.

The Respondent submitted that its evidence would be that it was in fact the Complainant who first raised the issue of nationality/race with Mr Tahacul, when he loudly questioned him as to his nationality.  Accordingly, the Respondent strenuously denied that Mr Tahacul, in his engagement with the Complainant, carried out a prohibited act and that his actions and those of Mr Balchand, were in any way intended to intimidate, degrade or humiliate the Complainant.  The Respondent submitted that accordingly there was no reasonable basis for a finding of harassment on the facts provided by the Complainant. 

The Respondent submitted that the Complainant had produced no evidence to support his claim, that the actions of the Respondent amounted to less favourable treatment due to his race, or that someone of a different race was or would have been treated differently in the same circumstances.  The Respondent drew attention to the case of Ethel Soga V Red Cow Moran Hotel, in that regard. 

The Respondent submitted that in all the circumstances, the Complainants case was misconceived and bound to fail.  The Respondent submitted that in those circumstances, the Adjudication Officer was respectfully suggested to use the jurisdiction provided pursuant to Section 22 (1) of the Act, and to dismiss the Complainants case for being misconceived.  The Respondent noted Section 22 (1) of the Act states: “The Director of the Workplace Relations Commission may dismiss a claim at any stage in the investigation if of opinion that the claim has been made in bad faith or is frivolous, vexatious, misconceived or relates to a trivial matter”.

In conclusion, the Respondent respectfully requested that the within complaint be dismissed in it’s entirety as the complaints were misconceived.  The Respondent noted that the Complainant lodged a subsequent claim under the Equal Status Act against the Respondent and that a decision had issued in that case on 6 January 2025, dismissing that claim. 

At hearing the Respondent outlined the requirement of the Complainant to make out a prima facie case before the burden of proof shifts to the Respondent in cases under the Equal Status Act.  The Respondent stated that the Complainant had only put forward assertions and had provided no factual evidence or facts that could be relied upon to ground a prima facie case of discrimination.  The Respondent noted that the Complainant was sitting in the lobby on his phone and wearing headphones so he could not see how he was being observed by others.  The Respondent stated that he was in the area known as the Writer’s Bar and that floor staff did approach him on more than one occasion and that he was sitting there for close to a half hour.  He stated that there was another area where the public could sit and wait and he was offered the opportunity to move to that area. 

The Respondent advised that Mr Tahacul had approached the Complainant in that busy area and asked him if he wanted to order or if he was a resident.  When he confirmed that he was not a resident, he was asked if he wished to book a table and when he declined to do so, she was offered to move to an alternative area.  The Respondent was emphatic that the Complainant had never been refused service, however, the Complainant had been offered service on three occasions and had declined.  The Respondent stated that it had been explained to the Complainant that it was necessary to free up the table if he was not ordering, at which time the Complainant challenged Mr Tahacul and became very aggressive. 

The Respondent stated that it contested that the Complainant was treated less favourably and noted the high percentage of other nationalities among the staff and indeed among the customers of the hotel.  The Respondent noted the training in relation to diversity and inclusion conducted by the Respondent, the policies in place and drew attention to certificates of completion of training provided for both managers involved in the incidents. 

In relation to the allegation that Mr Tahacul had referenced the issue of the missing bag, the Respondent stated that in all probability this could not have happened, that Mr Tahacul would not approach any member of the public and accuse them of being a thief.  The Respondent further noted that it was the Complainant who raised the issue of race.  The Respondent also noted that it was not unusual to have general footfall in that area of the hotel and that often customers of the hotel were waiting for others there and were not resident and not ordering.  The Respondent stated that in those circumstances, anyone would be approached in the same way and would be asked to move to a less busy area to free up a table. 

The Respondent noted that the Complainant had stated that he himself had raised the matter of race in error but that it was unclear why he had raised that issue at the time.  The Complainant had only referred to one family in the area.  In this regard the Respondent pointed out that this was the busiest area of the hotel and that it was inconceivable that he was the only person that was approached in order to check if he wanted to order.  The Respondent further noted that the Complainant had not specified any comparator and that it was in fact he who had brought up the question of nationality on the day of 3 December 2023.  The Respondent also entered into evidence, a note of the incident on 3 December, in the duty log and it was described as an incident with an outside guest and it was signed by the Duty Manager on the day.  The Respondent drew attention to the fact that the note on that day made no reference to any missing luggage and noted that if a residents luggage had gone missing, this would absolutely have been noted in the duty logbook.  The Respondent also drew attention to a ticketing system that was in place for the management of luggage and stated that it would be extremely rare for luggage to go missing in those circumstances.  

Witness Evidence Mr Tahacul:

Mr Tahacul confirmed that he was a Duty Manager with the Respondent for approximately three years and he confirmed that he was aware of the hotel policies in relation to equality and diversity, and that he had received training in relation to those policies.  He stated that he found the situation that occurred on 3 December to be a very humiliating situation, that it was a personal attack on him and his background and where he came from. 

Mr Tahacul confirmed that he was working in the lobby on the day and that a staff member advised him that they had approached a member of the public twice who had rudely refused to order.  He stated that he was then obliged to approach the Complainant.  He stated that the Complainant was wearing headphones and that he politely asked him if he was a resident or if he was waiting to check in.  He stated that the Complainant responded rudely to him, asking why the staff of the hotel kept interrupting him.  He stated that he then looked at his name tag and asked, “where are you from?”.  Mr Tahacul stated that the Complainant stated that he was waiting for his counsellor and so Mr Tahacul offered to book him a table.  He stated that again the Complainant said to him “where are you from” to which he had responded that he was just doing his job.  Mr Tahacul stated that others could overhear what was happening because the Complainant spoke in an elevated tone.

Mr Tahacul stated that Mr Balchand had overheard what was being said and that he approached and explained the hotel policy to the Complainant.  Mr Tahacul stated that this was not unusual.  He stated that as the Complainant was leaving the premises, he asked the porter to see a Senior Manager.  Mr Tahacul confirmed that he never refused the Complainant any service and that he never showed him to the door. 

Mr Tahacul confirmed that prior to working for the Respondent, he worked in the Shelbourne Hotel and before that on a cruise liner and that he had never experienced such humiliating circumstances.  He confirmed that the ES1 form was brought to his attention by the Respondent and he confirmed that he made the note in the duty diary which was signed off by Mr McCracken.  He stated he was questioned and intimidated by the Complainant and that he was reluctant to approach him because of the difficulties. 

Under cross examination by the Complainant, Mr Tahacul confirmed that he never asked the Complainant about luggage, that he never asked the Complainant to leave, that he offered him the option of booking a table.  He also stated to the Complainant that “you chose to leave when I offered to book you an alternative table”. 

Mr Tahacul stated that the Complainant presumed he was Indian but that he was not Indian and that the Complainant stated to him “don’t forget where you came from”.  He stated that there were comments made about “I am a proud Muslim, I am a proud Pakistani” to which the Complainant  responded that had never occurred. 

Mr Tahacul stated that the Complainant had said to the porter that he would be back to speak to a manager and that he could have asked for more information then.  The Complainant put it to Mr Tahacul that if he was being aggressive, why had he not called security, to which Mr Tahacul responded, that there was no security.  Mr Tahacul clarified that he was talking about verbal abuse and not any other form of abuse.  He stated that this happened when the Complainant changed from speaking in English to Urdu and he stated that it was easier to speak in English and he felt that the Complainant was questioning him personally. 

In response to questions from the Complainant, Mr Tahacul confirmed that if luggage was stolen or missing “we would write it in the log book”, that there was a standard operating procedure in relation to how this would be handled and that it is not something that would be discussed with members of the public.  Mr Tahacul advised that Indian/Muslims do not always get along and that the Complainant had said he was Indian and Muslim.  Mr Tahacul confirmed that he was Hindu and Muslim. 

In relation to the note in the duty diary, Mr Tahacul confirmed that it was a very short note and that he did not put in detail as the detail would be provided in follow up discussion. 

Witness Evidence – Mr Balchand:

Mr Balchand confirmed that he was a Senior Manager with the Respondent for approximately 3½ years, but that he was experienced in hospitality for more than 20 years.  He confirmed that he was aware of the policies and procedures of the Respondent and that he had received training in relation to those policies. 

Mr Balchand confirmed that on the day in question, he was approximately 7-8 metres away from where the Complainant was sitting when he overheard a loud tone.  He noted that Mr Tahacul was attempting to explain the policy to the Complainant and he joined them and explained the policy again, explaining that the environment was very busy with customers looking for tables.  He advised the Complainant that when a guest refuses to order, it is policy to check if that customer is a resident of the hotel.  He stated that if a person was not a resident but was waiting, they would allow approximately ten minutes, but any longer and a manager would need to address the situation and to ask questions.  Mr Balchand confirmed that it was an extremely busy time, that it was pre Christmas and there was a lot of post shopping clientele in the hotel.  He stated that he was confident that Mr Tahacul could deal with customers, but that when he heard the loud voice, he decided it was time to step in.  He stated that the Complainant had been almost half an hour seated at the table and that if he was not ordering, it was necessary for him to move to release the table.  He stated that the Complainant muttered in his own language to Mr Tahacul and seemed to be disrespectful.  He noted that Ms Nugent had said that she had never been treated in that way and he stated that the staff always have to ask a customer if they are seated for a long time.  He stated that the hotel was on the main road in Dublin City Centre and that there were ongoing issues with individuals coming into the hotel who were neither resident nor customer, due to bad weather or waiting for trams or buses.  He further stated that it would be very unusual to have theft of luggage, that there was a multi ticketed system in place and that if luggage went missing, it would be more likely the Respondent would check the CCTV to see what had occurred, rather than approach random individuals. 

Cross Examination of Mr Balchand:

The Complainant put it to Mr Balchand that he could not have heard a loud voice given that he was close to the front door, given that area was busy and he asked if Mr Balchand had particularly good hearing.  Mr Balchand confirmed that he was able to hear the Complainants voice and he confirmed that it was clear there was a lot of tension in the conversation taking place.  He confirmed that in his view, the Complainant was not necessarily being rude to him, but was very focused on his colleague who was trying to ignore him.  He stated that he too felt threatened because if he could behave in such a manner to his colleague, then it was possible that that behaviour could be directed towards him also.  He stated to the Complainant that “you were very angry”. 

Witness Evidence - Mr Paul McCracken:

Mr McCracken confirmed that he was 28 years working with the Respondent and that prior to that he had worked in the Dorchester Hotel. He confirmed that the hotel was very conscious of the diversity of its staff and customers and had procedures in place to ensure appropriate interactions at all time. He noted that there were 34 different nationalities working in the hotel, that they had a very professional HR team and that they had procedures in place for everything.  Mr McCracken confirmed that it was a very busy hotel, it was the second largest in the country, with a lot of events and guests passing through its lobby area.  He stated that in those circumstances, the staff had to be very vigilant on the ground floor and so there was always at least one manager on that floor.  He stated that the Respondent insisted on a high ratio of staff and that every station was manned every day.  He stated that there was always a note taken in the duty diary of any situation that arose on any given day.  He stated that even on a busy day, something as serious as a theft would have been noted and he noted that every day was different. 

In relation to luggage being stolen, Mr McCracken advised that there were three large storage rooms for luggage and that each item is ticketed.  He stated that the storage rooms had CCTV and that you would have to get a porter in order to get luggage from any of those storage rooms, that an individual was never left alone to take luggage.  He stated that if a phone, handbag or luggage was involved, the staff do not get involved in questioning patrons of the hotel, and that the Guards would be called.  He stated that the two staff in question involved in the allegation on 3 December were both level headed in general and that the Respondent only employs very senior people, supported by managers in the hotel. 

Under cross examination Mr McCracken stated that he very much regretted that matters had come to this and he confirmed that he had responded personally to the ES1 form and had sent it through registered post.  He stated that if a complaint was about staff, he would involve HR to conduct an investigation.  He stated that it would be necessary to interview staff and get their account of events. 

Respondent Closing Remarks:

The Respondent stated that the effect of this complaint on the hotel had been significant and stated that in circumstances where the Respondent had placed such importance on customer service and such importance on respecting diversity of its’ staff and customers, it was devastating to be associated with an equality case such as this.  The Respondent stated that the impact on the two managers involved had also been significant and that they were carrying out their jobs and acting within policy.

The Respondent accepted that the Complainant had been upset but that he had misinterpreted the approach made by the managers.  The Respondent reminded the hearing about the Customer Charter and the requirement to check if a customer is ready to order within a prescribed timeline.

The Respondent stated that the Complainant was not asked to leave because of his race, in fact, at no time was race mentioned in the conversation.  The Respondent stated that the Complainant was asked to leave because of his behaviour.

The Respondent, while accepting the bona fides of Ms. Nugent, noted that her evidence was entirely hearsay and that she was not present when the interactions occurred.  In the alternative, the Respondent noted that Mr. Tachul and Mr. Blanchard were in a position to give direct evidence.

The Respondent noted the requirement on the Complainant to provide evidence of a prima facie case and noted that assertions, unsupported by evidence do not reach the standard required to meet the threshold required.  In such circumstances, the Respondent submitted that the Complainant’s case was misconceived and so must fail.

Section 3(1) of the Act provides, inter alia, that discrimination shall be taken to occur:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’ which- {….]”

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of race (h)  that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”).

Section 38A of the Act deals with the Burden of Proof and states as follows:

“38A.—(1) 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.”

In evaluating the evidence before me, I must first consider the following:

(i)               if the complaint is properly before me and

(ii)              if the Complainant has established a prima facie case pursuant to Section 38A of the Acts. 

This requires the Complainant to set out in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him.  It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In relation to (i) above I find that this complaint is properly before the WRC and was submitted within the requisite time-limits prescribed by Section 21 of the Acts, including those for giving notice of a complaint to the Respondent by means of submission of the ES1 form and referring the complaint to the WRC.

In relation to (ii) above there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (e.g. race).

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable that the treatment someone, not covered by the same ground(s), would have received in similar circumstances.

A prima facie case is established only when all three criteria are satisfied and only then the burden of proof shifts to the Respondent to rebut the claim of discrimination. 

The law in relation to discrimination is well established in this jurisdiction:

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these 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 provide that there was no infringement of the principle of equal treatment”.

In the instant complaint the Complainant alleged that he was discriminated against by the Respondent by reason of his race on 3 December 2023 when he was harassed by employees of the Respondent and ultimately asked to leave the premises. He alleged that he was sitting at a table in the lobby of the Respondent hotel on 3 December 2023 and that he was waiting to meet a friend who was running late.  He alleged that he was targeted as a potential thief by a staff member of the hotel (Mr. Tahacul).  He alleged that he was bombarded with questions about whether or not he was a resident and whether or not he wished to order.  He further alleged that Mr. Tahacul advised him that luggage had gone missing and that there were cameras around.  He stated that there were other people in the area including a young family.  He alleged that another colleague joined the conversation and that Mr. Tahacul stated that he did not wish to prolong the conversation.  He alleged that he told Mr. Tahacul that he would “rather not wait in a place like this” and that he was then asked to leave.  He alleged that while he was there, others in the lobby were not asked as to why they were there, nor were they asked to leave.

In relation to 1 above I noted that the Complainant did not provide any specific details in either his complaint form nor in his ES1 form in relation to his race.  However, it was evident that the Complainant was not an Irish national.  He also noted the different treatment of the family in the lobby at the same time and described them in evidence at hearing as being a “white family”.  I therefore accept that the Complainant is covered by the discriminatory ground of race.

In relation to 2 and 3 above and the allegation that the Complainant was discriminated against on the ground of race I find that the Complainant has failed to adduce any evidence, even on a prima facia basis in relation to his allegation of discriminatory conduct by the Respondent.  The only evidence adduced was a belief that Mr. Tacahul’s behaviour was because of the Complainant’s race.  The Complainant stated that he “felt it must be race because there was no other explanation for the behaviour.”

I noted that the Respondent refuted the allegation and stated that the Complainant was occupying a table in the lounge area and was approached twice by staff to enquire if he wished to order food and drink and that this was in accordance with the Customer Service Charter.  The Respondent position was that when the Complainant declined to order he was then approached by a manager and became agitated, that this resulted in a second manager joining the discussion and ultimately the Complainant being asked to leave as a result of his behaviour.

In the circumstances of the Respondent having a clear Customer Service Charter which prescribed the approaches of the staff to the Complainant, given the fact that the hotel is located on the main thoroughfare in Dublin City and given that this was during the peak Christmas period, it is not difficult to accept that there was another explanation for the approaches made by the staff to the Complainant.  It is also entirely consistent with the Customer Service Charter and the aforementioned circumstances that a person seated in the dining spaces in the lobby would be asked to move where they had repeatedly confirmed that they were not in a position to order.

It is common case that the Respondent did not refuse a service but rather sought to relocate the Complainant when he advised that he was waiting for a friend.  When offered the opportunity to book a table for later he declined that offer also.

I noted that the Complainant found the altercation “extremely humiliating and degrading”.  I noted that the two managers involved were also upset and embarrassed by the events that occurred and I fully accept that such an altercation in a public area would be upsetting to all parties involved.

However, the Complainant did not name a specific comparator who was treated differently nor did he provide any evidence that the issues that arose related to his race.  In fact he identified no link between the events of the day and his race, other than his assumption that his race was the only possible explanation for Mr. Tahacul’s behaviour.  It is settled law that assumptions cannot be elevated to the status of evidence.

The Complainant did not provide any direct witness to the altercation which took place.  The evidence of Ms. Nugent related to her meeting with the Complainant afterwards but she was not present at the time of the altercation.

Having considered the totality of the evidence in this case I find that the Complainant has not established a prima facia case of discrimination on the ground of race and so I find that this complaint is not well founded.

I have found that the Complainant has not established a prima facie case of discrimination and that this complaint is not well found.  I decide accordingly.

Discrimination on the ground of race