Complainant

Respondent

Parties

Nadine  Lattimore

Booking.Com B.V.

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Céile Varley

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062188-001

13/03/2024

This complaint was received by the Workplace Relations Commission on 13/03/2024.

The Complainant is registered blind and is a user of a Guide Dog for over 16 years. The Respondent is a digital travel company, part of Booking Holdings Inc., registered and based in Amsterdam, the Netherlands. 

Introduction.

·       This submission is made on behalf of Nadine Lattimore (the Complainant), in respect of complaints submitted to the Workplace Relations Commission (the WRC) bearing the complaint reference CA-00062188 against the above referenced Respondent.

·       The Complainant is registered blind and is a user of a Guide Dog for over 16 years. 

·       The Respondent is a digital travel company, part of Booking Holdings Inc., registered and based in Amsterdam, The Netherlands.

·       This submission is made in respect of the Complainant's complaint seeking adjudication by the WRC under section 21 of the Equal Status Acts 2000-2018 (the ESA) which is referred to in the Complaint Form filed on the 13th of March 2024. The submission of the Complaint Forms was predated by written notification by Complainant on the 26th of January 2024.

·       The Complainant contends that on the 10th of December 2023 she was the subject of less favourable treatment on the grounds of her disability and that she was not provided with reasonable accommodation by the Respondent contrary to the provisions of the ESA. This less favourable treatment and failure to provide reasonable accommodation occurred on multiple occasions thereafter.

CHRONOLOGY OF EVENTS

·       The Complainant used the services of the Respondent on the 7th of December 2023, to make a booking for accommodation. The booking was for the Complainant and her 4-year-old son. A confirmation code was received, thereby the booking was accepted for one adult and one 1 child.

·       On the 7th of December 2023 at 22.54, shortly after booking, the Complainant contacted the accommodation proprietor informing that she will be accompanied by her Guide Dog.

·       On the 8th of December 2023 at 17.09, the accommodation proprietor refused to accommodate the Complainant owing to her Guide Dog.

·       On the 9th of December 2023 at 23.06, following the proprietor’s refusal to accommodate the confirmed reservation, the Complainant contacted Booking.com customer services.

·       On the 10th of December 2023 at 00.48, a customer service agent acting on behalf of the Respondent replied beginning a thread of emails on the matter.

THE ESA

·       Section 5 (1) of the ESA prohibits discrimination in the following terms: -

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

·       Section 3 of the Equal Status Act 2000 defines discrimination as: -

“(1) For the purposes of this Act 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) or, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

·       The protected grounds are set out in section 3(2) and include: -

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”

(j) that one—(iv) has opposed by lawful means an act which is unlawful under this Act, and the other has not (the “victimisation ground”).

·       Special treatment/reasonable accommodation is defined in Section 4: -

“4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

INTERPRETATION OF THE ESA

·       In the Supreme Court in Kim Cahill v Minister for Education and Science 2017 IESC 29, McMenamin J stated at paragraph 45: -

“The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a statute “to promote equality,” to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas… the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the legislature.”

·       In respect of the duty to provide reasonable accommodation under section 4, McMenamin J stated at para 58: -

“The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability.”

·       At paras 62-63, he stated:

“In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service… The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element, (which does not arise in this case), but second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient.”

·       In the Court of Appeal in the case of Smith v The Office of the Ombudsman & Others [2022] IECA 99, the Court confirmed that the ESA and the regime provided thereunder were: - “processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted.”

LEGAL SUBMISSION – DISCRIMINATION, FAILURE TO PROVIDE REASONABLE ACCOMODATION CLAIMS

·       The Complainant acknowledges that under section 38A (1) of the ESA, she must establish a prima facie case of discrimination. In this regard, the Complainant must establish facts from which it may be presumed that prohibited conduct has occurred. The Complainant also acknowledges that the test for what constitutes a prima facie case has been set out in a number of decisions of the Labour Court, in particular, in Southern Health Board v. Teresa Mitchell [2001] E.L.R. 201 and Valpeters v. Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case at p.68, the Labour Court stated 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 of no exceptions to that evidential rule.”

·       Based on the information set out above, and the evidence that will be provided by the Complainant at the hearing, it is clear that the Complainant has a disability, and that she was treated less favourably by the Respondent, who was providing a service within the meaning of section 5 of the ESA.

·       The Complainant relies upon the oft cited decision of the Equality Officer in Maughan v The Glimmer Man Ltd DEC-S2001-020. In this case, the Equality Officer held: -

“I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations.”

·       Judy Walsh in her textbook Equal Status Acts 2000-2011 comments at page 104 that the above decision recognised that a claim of direct discrimination could be sustained where a service provider failed to treat persons differently. The Labour Court also recognised that the application of the same rules to different situations could amount to discrimination in its decision in Campbell Catering v Rasaq [2004] ELR 15.

·       The denial of a service in such circumstances also amounts to a failure to provide reasonable accommodation under section 4(1) of the ESA. In the case of Roche v Alabaster Associates Ltd t/a Madigans DEC-S2002-086 and Moloney v Park House Hotel DEC-S2008-073. In Moloney, the Equality Officer stated: -

“[a guide dog is] not just a pet…it had a specific purpose and function; its owner was visually impaired and requires the use of the dog to find his way around…the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise.”

·       The Complainant will also rely on the decisions from Adjudication Officers of the WRC in the claims of Pamela McKeogh v Kilkenny House Hotel ADJ-00027292 and Sophia Brennan v KOA ADJ-00038210. This latter decision involved the refusal by a restaurant to allow the complainant’s guide dog onto the premises. The respondent contended that it provided a number of accommodations to the complainant including an offer of eating at a table outside on the footpath. The Adjudication Officer in finding for the complainant commented:

“The dog should simply be accommodated on arrival... There is no suggestion that the Complainant was asked to wait or come back so as to allow the Restaurant to re-configure tables or already seated parties so as to accommodate the Complainant. The Complainant was treated as “other”, her dog was insulted, and she was sent away.”

·       The Complainant submits that she has established a prima facie case of discrimination and failure to provide reasonable accommodation as required and further submits that the Respondent has failed to rebut the inference of same.

The Complainant was initially refused service by the accommodation provider, told to cancel and try book elsewhere on the basis that she had a dog. She then notified the Respondent’s staff, clarifying that the dog is a Guide Dog, owing to her Vision Impairment. Even after she asserted her legal rights under the ESA, the Disability Discrimination Act (DDA 1995) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the Respondent failed to protect a Guide Dog owner right to reasonable accommodations...

CONCLUDING REMARKS

·       What occurred on the 10th of December 2024 and the treatment thereafter by the Respondent was discriminatory, the Complainant was othered.

·       The Complainant submits that should any compensation for discrimination be awarded, that it be effective, proportionate, and dissuasive. This is a fundamental principle which is enshrined in Article 19 of the Treaty on European Union, in Article 47 of the Charter of Fundamental Rights of the European Union and also in case law from the ECJ.

INTRODUCTION

·       These submissions are prepared on behalf of Booking.com BV In responding to the complaint by Ms Nadine Lattimore to the Workplace Relations Commission (WRC) under the Equal Status Acts.

·       The Respondent has not discriminated against Ms Lattimore and has complied with its statutory duties at all times.

PRELIMINARY OBJECTION

·       The WRC does not have jurisdiction over the alleged discrimination by the Service Provider, which occurred in Northern Ireland, and is governed by Northern Ireland / UK Equality law.

·       In addition, the Respondent is not vicariously liable for the acts of the Service Provider and the Complainant should have brought a claim against the Service Provider directly. The contract for accommodation was between the Complainant and the Service Provider. Booking.com provides a platform for third party businesses to advertise accommodation services and travel experiences. As can be seen from the Respondent’s witness statement, there was no contract for services between the Complainant and the Respondent.

·       The WRC’s equality jurisdiction extends to contracts for services executed or provided within the Republic of Ireland, and contracts for services governed by Irish law.

·       Accordingly, the Equal Status Acts may apply to the service that Booking.com provided to the Complainant (access to the online platform) and to customer service interactions, but cannot extend to the booking with the Service Provider.

·       First, the accommodation was in Belfast which is outside of the WRC’s geographical jurisdiction in equality matters. The Complainant indicates an understanding of this in her communication with the Service Provider when she references the relevant Northern Ireland disability legislation, rather than the Equality Acts 2000 (as amended).

·       Second, the Booking.com Customer terms of service clearly differentiates between the online platform and the travel experience. Booking.com is responsible for the platform, and individual service providers are responsible for the travel experience.

·       Booking.com is not vicariously liable for discriminatory acts carried out by a service provider, unless the action was done in the context of employment or agent. For the avoidance of doubt, there is no relationship of employment or agency between the Respondent and the Service Provider, within the meaning of section 42 of the Equal Status Act 2000 (as amended)

·       There are a number of reported decisions involving accommodation booked through Booking.com. In all of these cases, the Complainant made a complaint in respect of the service provider rather than Booking.com. See inter alia:  ADJ-00049215 Martin McDonagh v Mulroy Woods Hotel; ADJ-00039182 Thomas Gammell v Labarre Ltd T/A Hotel Savoy Limerick (13 November 2023); ADJ-00038010 A Complainant v A Hotel (8 August 2023); ADJ-00026060 Annalise Power v Atlantic Troy Limited Charleville Park Hotel & Leisure Club (19 January 2022).

·       In one decision involving discrimination against a member of the Traveller community, the Respondent hotel argued that Booking.com was responsible for overselling rooms, requiring the hotel to refuse the Complainant a room. The Adjudication Officer rejected this argument and held the hotel liable for the discrimination. ADJ-00015163 Geraldine Ward v The Meadow Court Hotel (7 August 2019).

SUMMARY OF MS LATTIMORE’S COMPLAINT

·       On 7 December 2023, the Complainant booked a double/twin room in a private home through Booking.com for a one-night stay. The booking was for the night of 16 December 2023. The booking policies for the accommodation confirm that “pets are not allowed”. Later that night, the Complainant informed the Service Provider that she would be coming with her Guide Dog.

“Hi there I have just made a booking for December 16th for myself, my son and my Guide Dog. Could you please advise the best way to travel by public transport arriving into Lanyon place. Many thanks Nadine”.

·       The Service Provider replied on 8 December and asked the Complainant to cancel the booking, as dogs were not allowed.

“Hi Nadine, it is not near to City and we are not allowing Dog. Could you please cancel and try other place?”

·       On 12 December, the Complainant messaged explaining that a Guide Dog is not a pet, and arguing that the refusal to allow her to access to accommodation would be unlawful discrimination contrary to the Disability Discrimination Act 1995 (the relevant legislation which applies in Northern Ireland).

“As a hospitality service provider offering bookings to the general public you are bound by law to accept Guide Dogs.…I have clearly indicated he is my Guide Dog and not a pet. By refusing my Guide Dog due to my disability, this may be unlawful discrimination contrary to the Disability Discrimination Act 1995. Less favourable treatment than non Guide Dog users amounts to direct discrimination of me due to my disability and indirect discrimination of my son due to his association with me. I will be seeking legal advice to consider if I shall commence proceedings resulting from this discrimination”.

·       The Service Provider replied on 12 December, apologising, and clarifying further that she was pregnant and allergic to dogs, with a 3-year-old child. She offered to stay with a friend for the night to accommodate the Complainant.

“Apologies if you felt discrimination, I am agree that I am not an original English speaker and I have a language barrier. The key concern is I am 2 months pregnant and I am allergic to dog. Secondly we have a 3 year old child. It would be difficult to keep him away from dog which is a risk of both of us. But if you insist to come and stay, they best I can do is I can stay in my friend’s house and let you stay here. Then my husband need to take a day off and clean the house before I come back. We have communicated same to Booking.com earlier. Hope you understand the situation and expecting your reply as soon as possible to sort my stay. Thank you”.

·       The Complainant cancelled her booking on 12 December.

·       The Service Provider sent a further message on 12 December. Thank you for understanding my situation and cancelling the booking. I hope you have found another place to stay. Once again apologies for the trouble. Have a great day ahead.

·       The Complainant issued her ES1 form on 26 January 2024, and the complaint form was issued on 13 March 2024.

COMMUNICATION BETWEEN COMPLAINANT AND BOOKING.COM

·       On Saturday 9 December, the Complainant opened a customer service chat with the Respondent through the Booking.com online portal. Some of the messages in the chat were sent automatically by the Respondent’s “Booking Assistant”, while other messages were sent by customer service representatives.

·       The Complainant’s first message on 9 December 2023 at 23.06 was as follows:

“Hi after booking was confirmed I emailed out of consideration to inform the owner that I will be accompanied by my Guide Dog – I am blind. Response from owner “Hi Nadine, it is not near to city and we are not allowing Dog. Could you please cancel and try other place?”

·       On 10 December 2023 at 00.48, a customer service representative identified as Jan Ronel D wrote:

“We’re reaching out to you about booking 4055800946 at A Perfet homestay near Belfast, check-in date 2023-12-16.

Kindly let us know what actions you wants us to do so we can help you further”..

·       On 10 December at 08.33, the Complainant replied:

“Well what action can you take? Is it appropriate to refuse a Guide Dog?”

·       On 10 December 2023 at 20.07, a customer service representative identified as Mariam S wrote:

“Please first allow me to thank you for using Booking.com We appreciate you as one of our loyal guests. And we will always have your back.

Regarding your inquiry, since it’s mentioned in the property’s home page that they are not allowing pets, I will try again from my side to clarify the situation more and ask for an exception.

We are humbly asking for your patience and kind understanding.

We will keep you updated once they reply”.

·       The Complainant replied on 10 December 2023 at 20.06:

“You appear to misunderstand or underestimate the seriousness of this discussion. Allow me to “clarify the situation more” for you. My booking is for a Guide Dog meaning that I am Blind. My animal is a fully trained and internationally recognised assistance animal, he is not a pet. A property policy not allowing pets is a decision that they have the right to make. Refusal of a Guide Dog is discrimination against a person with a disability. A property refusing me AND my son on the grounds of my disability is acting illegally. Myself and my son are protected under the Disability Discrimination Act 1995 against refusal or being treated less favourably than others. Booking.com seems neither aware of these facts, nor places any importance on mine and my son’s rights. I am not seeking an exception, I am expecting not to be discriminated against. The response from Mariam S is wholly inappropriate to say the least, in fact it is verging on further discrimination by booking.com itself”.

On 11 December 2023 at 09.14, a customer representative identified as Jaylee Dainiel G wrote:

Hope you’re doing well, we are very sorry for the inconvenience with regards to the reservations, we do not want our valued guest like you to have this experience.

We totally understand your request and we are doing our best to provide all this information to the accommodation but unfortunately the reason why the accommodation still do not agree even the policy of this reservation indicates pets are not allowed is the accommodation owner son is afraid of dogs and his wife is pregnant that is allergic to dog hair. We hope you totally understand this situation and if only we can turn things over there will be hesitation to accommodate you and assist you since we value you. If you have any other questions, please feel free to contact us at any time.

·       On the same date at 22.36, the Complainant replied:

I most certainly am not “doing well”. To reiterate this is not an “inconvenience”, it is breaching my human rights. I am astonished that the gravity of this situation is again disregarded. I so not “totally understand” the situation and find it further patronising that we are referred to as “loyal guests”, a “valued guest” and “we value you”. To summarise, the accommodation proprietor is discriminating against myself and my son, contrary to the Disability Discrimination Act 1995. They have a legal obligation as a hospitality service provider to the general public, to accept my booking. Any less favourable treatment due to my disability – which refusing my Guide Dog most certainly is – breaches mine and my sons human rights, in addition to the aforementioned Act. Regarding Booking.com, you “do not want a valued guest like me to have this experience”, yet it appears that you are supporting the proprietors unlawful refusal. The legal obligation to accept a guide dog is not a “request”. Despite outlining very clearly in my pervious message that no excuse absolves them of this fact, you find it appropriate to again refer to pet policy. …

Allow me to reiterate fear of dogs, pregnancy or allergies are not bona fide grounds to refuse a Guide Dog. It appears that Booking.com is complicit in unlawful discrimination by the proprietor in accepting these ludicrous excuses. Less favourable treatment than no Guide Dog users, amounts to direct discrimination due to my disability and indirect discrimination of my son due to his association with me. I will be seeking legal advice to consider if I shall be commencing proceedings lodging a Civil bill resulting from this discrimination. In addition I will be investigating if Booking.com is itself acting unlawfully.

·       On 12 December 2023, the Complainant cancelled her booking with the Service provider

·       On 16 December 2023, the Respondent’s customer service team sent a further message to the Complainant.

We would like to apologise to you for any hardship you went through.

We agree with you that the accommodation refusal to accommodate you was not right. We also need you to accept our wholeheartedly apology for our responses regarding your questions.

We want to make it up to you, so, we would like to know if you managed to find an alternative accommodation for the dates you booked at A Perfect Homestay near Belfast and if there was any extra costs you had to pay more than the original reservation cost.

 We will happily help cover any price difference you had to pay more than the cost of this reservation on the same dates, and any transport costs that was needed during your relocation.

Kindly send us any invoices related to your relocation. We are looking forward for your responses.

LAW APPPLICABLE TO THE COMPLAINT

·       The jurisdiction of the WRC is set out in the Workplace Relations Act 2015 (the 2015 Act). Section 21 of the Equal Status Act 2000 (the 2000 Act), as amended by s.84(1)(b) of the 2015 Act, provides that a person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the WRC.

·       The discriminatory grounds are set out in s.3 of the 2000 Act and include the disability ground in s.3(2)(g).

·       Section 5(1) confirms that providers of goods and services shall not discriminate in disposing of same.

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

·       Section 4(1) of the 2000 Act deals with general discrimination on the ground of disability and states that:

For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

·       Section 4(2) states that a refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. This only applies to a “provider of service” within the meaning of s.4(6) of the 2000 Act which would include a person providing a service.

·       In the case of Kim Cahill v Department of Education and Science, 2017 IESC 29, McMenamin J held:

The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a Respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.

·       McMenamin J went on to state that,

The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.

·       In Deans v Dublin City Council, unreported (15 April 2008), Hunt J stated that, … reasonableness must be judged according to the context of the individual case…The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities...All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it.

·       In Hallinan v Moy Valley Resources DEC-S2008-25, which concerned a complaint taken under the 2000 Act, the Equality Officer held that in order to establish a prima facie case of discrimination, the following must be established: -

(a) The Complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place;

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

·       It is submitted that the Complainant has not satisfied the criteria for establishing a prima facie case of discrimination against the Respondent, per Hallinan.

·       In the event that the Complainant does establish a prima facie case of discrimination, the burden of proof falls to the Respondent. The relevant burden of proof is set out at section 38A of the 2000 Act.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

·       The Respondent will submit that no prohibited conduct has occurred, such as would constitute discrimination on the grounds of disability, including failure to provide reasonable accommodation.

CONCLUSION

·       The burden rests on the Complainant to prove that prohibited conduct has occurred. The Complainant must establish that: -

(a) She is covered by the protected ground.

(b) The specific treatment has allegedly taken place.

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

·       The Respondent is not vicariously liable for the alleged discrimination carried out by the Service provider and the WRC does not have jurisdiction over that complaint in any event.

·       In relation to the customer service interactions between the Complainant and Respondent, there was no ‘less favourable’ treatment and no discrimination on behalf of the Respondent. The Respondent did all that was reasonable to accommodate the needs of the Complainant including offering to compensate for any additional costs incurred by booking new accommodation or transport.

·       It is submitted that the Complainant has failed to establish a prima facie case of discrimination.

The representative for the Respondent raised a preliminary objection and stated the following via her written submission:

PRELIMINARY OBJECTION

·       The WRC does not have jurisdiction over the alleged discrimination by the Service Provider, which occurred in Northern Ireland, and is governed by Northern Ireland / UK Equality law.

·       In addition, the Respondent is not vicariously liable for the acts of the Service Provider, and the Complainant should have brought a claim against the Service Provider directly. The contract for accommodation was between the Complainant and the Service Provider. Booking.com provides a platform for third party businesses to advertise accommodation services and travel experiences. As can be seen from the Respondent’s witness statement, there was no contract for services between the Complainant and the Respondent.

·       The WRC’s equality jurisdiction extends to contracts for services executed or provided within the Republic of Ireland, and contracts for services governed by Irish law.

·       Accordingly, the Equal Status Acts may apply to the service that Booking.com provided to the Complainant (access to the online platform) and to customer service interactions, but cannot extend to the booking with the Service Provider.

·       First, the accommodation was in Belfast which is outside of the WRC’s geographical jurisdiction in equality matters. The Complainant indicates an understanding of this in her communication with the Service Provider when she references the relevant Northern Ireland disability legislation, rather than the Equality Acts 2000 (as amended).

·       Second, the Booking.com Customer terms of service clearly differentiates between the online platform and the travel experience. Booking.com is responsible for the platform, and individual service providers are responsible for the travel experience.

·       Booking.com is not vicariously liable for discriminatory acts carried out by a service provider, unless the action was done in the context of employment or agent. For the avoidance of doubt, there is no relationship of employment or agency between the Respondent and the Service Provider, within the meaning of section 42 of the Equal Status Act 2000 (as amended).

The representative for the Respondent also points to the fact that on 12th December the Complainant messaged explaining that a Guide Dog is not a pet, and arguing that the refusal to allow her access to accommodation would be unlawful discrimination contrary to the Disability Discrimination Act 1995 (the relevant legislation which applies in Northern Ireland).

It is clear from this that the Complainant was very much aware of the legislation in relation to discrimination.

I have given this matter much consideration and would consider that the accommodation provider and not Booking.com is the service provider. I find the complaint as presented is not well found.

I have given this matter much consideration and would consider that the accommodation provider and not Booking.com is the service provider. I find the complaint as presented is not well found.

Equal Status Act 2000.