Complainant

Respondent

Parties

Vanessa Corral

Generator Properties Dublin Ltd

Representatives

Self

Cillian McGovern BL instructed by Jason McMenamin of A&L Goodbody

Act

Complaint Reference No.

Date of Receipt

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

CA-00069581-001

26/02/2025

The Complainant alleges that she was sexually harassed and victimised at the Respondent’s premises on 2nd December 2024. She gave evidence on her own behalf by way of civil affirmation.

At the hearing, the Respondent submitted two booklets that had not previously been shared. The first contained documents that the Respondent wished to rely on in evidence. The Complainant was given some time to examine this booklet and, as it largely contained documents that she was already familiar with, she did not raise any objection to the documents being used in the hearing. The second booklet contained nine decisions of the Workplace Relations Commission and the Labour Court concerning previous complaints of the Complainant.

Two witnesses were present for the Respondent and gave evidence on it’s behalf, the first being the front office manager, Carlos Martinez, who gave evidence by way of civil affirmation, and the second being the general manager, Laura Stopforth, who gave evidence by way of religious oath.

The Complainant had named the Respondent as Generator Hostels Ltd. It was clarified at the hearing by the Respondent that the correct registered legal entity is Generator Properties Dublin Ltd. With the consent of all parties, the Respondent name was amended to reflect the correct entity.

At the hearing, the Respondent’s representative requested that the Adjudication Officer exercise inherent discretion to anonymise the decision but specific special circumstances were not identified. The Complainant opposed this application and stated that she didn’t see any sensitive nature to the case. While no members of the public were present, the hearing proceeded as being open to the public.

The Complainant then made a post hearing application for the decision to be anonymised. The grounds for the application were that a Respondent witness made false statements and that as the grounds of the complaint are discrimination and victimisation that it is reasonable not to name the parties. The Respondent had no objection to this application.

Section 30(1) of the Equal Status Act, 2000 (the Act) provides that the Director of the Workplace Relations Commission must give a copy of every decision issued under this Part of the Acts to both the Complainant and the Respondent. The section also requires that all such decisions be published online in whatever form the Director General of the Workplace Relations Commission considers appropriate.

This hearing was held in public and no application was made by the Complainant prior to, at or during the hearing for it to be in private or for the decision to be anonymised. On the contrary, she opposed an application of this type when it was made by the Respondent.

Typically, a party requesting anonymisation must demonstrate that special circumstances exist to displace the presumption that hearings take place in public and parties are named in decisions. The WRC has published guidance on this issue which identifies that special circumstances must be present to rebut the presumption of open justice.

In this case, I am not satisfied that such special circumstances exist. A special circumstance giving rise to a need for privacy must be clearly identified. The Complainant in this case disagreed with evidence given by a Respondent witness. This is common case in hearings and I do not consider it to be a special circumstance that requires anonymisation of this decision.  For that reason, the application to anonymise the decision is refused and the parties are named in the heading of this decision.

The Complainant stated that on 2 December 2024 she arrived at a shared dormitory room in a tourist hostel operated by the Respondent. Upon entering, she encountered a fully naked female guest standing directly inside the door. She says that the woman did not react with any sign of modesty, and the Complainant, feeling shocked, informed the woman that her behaviour was inappropriate before going into the ensuite bathroom to gather herself. When she came out, the woman remained undressed. The Complainant again expressed that the situation was inappropriate, at which point the woman became angry, causing the Complainant to feel intimidated and threatened. She left the room and went directly to reception to report the incident.

The Complainant states that the staff member on duty dismissed her concerns and told her that the behaviour she experienced was a cultural matter. When the Complainant asked whether a protocol existed for such situations and mentioned that she might make a complaint to the WRC or the Gardaí, the staff member allegedly became aggressive and told her she would be removed from the premises if she did not leave the desk. The Complainant believes she was being blamed for reporting the behaviour, and that the staff member sought to avoid responsibility on behalf of the Respondent.

The Complainant says that although she was ultimately moved to another room, the staff member refused to allow her to extend her stay, which she required for work purposes. She stated that she felt effectively banned from the hostel without justification. She reported experiencing significant distress as a result of both the incident and the staff member’s response, including panic attacks and the need to seek support from a voluntary organisation.

The Complainant submits that she was sexually harassed by the other guest and that the Respondent failed to respond appropriately when notified. She further claims that she was victimised for opposing sexual harassment, as she believes the adverse treatment she experienced at reception was a direct reaction to her having raised the issue. She also contends that she was discriminated against on the gender ground, as she felt the staff member assumed that, as a woman, she should not object to another woman’s nudity and should not regard the incident as harassment. She stated that being told the behaviour was “a cultural thing” invalidated her experience, disregarded her personal boundaries, and constituted gaslighting.

The Complainant sent an ES1 form to the Respondent by email early the following morning. It stated that “I believe that I have been victimised because I reported sexual harassment and upon seeing the staff not taking any acction about it other than changing me to another room and telling the staff I could report such an incident to the Garda I was theatened with being kiked out the hostel and I was not allowed to renew my stay. I wast told to go to my room or I would be kiked out with the uttermost unempathetic and victim blaming victimisation actitude posible".

No written response was received to the above and on 26th February 2025 the Complainant brought this complaint under the Equal Status Act, 2000 on the basis of victimisation for opposing unlawful conduct, and discrimination on the gender ground. The Complainant also alleged that she was discriminated on the “cultural ground” because of the comment by a staff member who stated that it may be a “cultural thing”.

The Respondent made submissions that this complaint should be dismissed in accordance with section 42 of the Equal Status Acts on the basis that it is frivolous or vexatious. It was submitted that the onus is on the Complainant to establish a prima facie case of discrimination and she had not done so.

It was further argued that there was no causal connection between the acts described by the Complainant and the Respondent. In fact, the Respondent could rely on the position that it had acted reasonably in the circumstances. When the complaint was first raised the Complainant was offered two options, firstly that someone could go up and speak with the person sharing the room with the Complainant or secondly that the Complainant could be moved to another room. The Complainant flatly rejected both reasonable options and in the circumstances it was therefore the Complainant who acted unreasonably.

The Respondent said that the Complainant had stayed at the premises on 55 occasions, 5 of which were after this incident. On 11 of those occasions she had made complaints and received a complimentary upgrade.

The Respondent stated that the Complainant had filled out the option of victimisation only on the complaint form and she did not specify any grounds of discrimination, yet at the hearing was attempting to rely on the grounds of gender and race. The Respondent said that this complaint should be treated as a complaint of victimisation only in circumstances where the Complainant is a serial lay litigant, this being her tenth complaint to the Workplace Relations Commissions, and she is therefore very familiar with the procedures for setting out her case.

The Respondent stated that a written response was not provided to the ES1 form because the general manager met with the Complainant the following day and understood from that meeting that all issues had been satisfactorily resolved. An email from the Complainant thanking the general manager for her approach was submitted in support of this.

Finally, the Respondent said that the Complainant had not met the burden of proof in this case and it had therefore not shifted to the Respondent.

This is a complaint under the Equal Status Act, 2000 (the Act). The complaint form submitted by the Complainant identified only the complaint of victimisation, however, this was accompanied by a statement which clearly identified discrimination on the grounds of gender and, while not using the term “race”, described circumstances relating to culture. The Respondent argues that the complaint should be limited to victimisation as set out in the complaint form.

In considering this, I am conscious that the WRC complaint form is not a statutory document. Section 21(1) of the Act states 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 Workplace Relations Commission.” The section does not specify the manner in which that referral is to be made.

In this case, the Complainant submitted a cover letter and statement in conjunction with the complaint form. The cover letter read “TO THE ATTENTION OF DIRECTOR GENERAL WRC”. The statement says “I am contacting you in relation to submitting a Discrimination complaint against a provider of services.” and “I believe that I have been Victimized for opposing sexual harassment which is an unlawful act under the Equality Act I also believe I have been discriminated under the ground of gender…”. Finally, the statement ended with “Be this my manual form requested statement to the Director General for the WRC”.

I am satisfied that the Complainant has referred a complaint of discrimination as well as victimisation to the Director General and in those circumstances I will consider it in this decision.

I decline the Respondent’s invitation to treat this case under section 42 of the Equal Status Act, namely that it is frivolous and vexatious, and have addressed below complaints of discrimination and victimisation.

The Complainant, in direct evidence, described arriving to the shared room that she had booked and finding a woman fully naked. She complained that the woman did not show any modesty when she arrived in the room. She told the woman that it was inappropriate to be fully naked and went to the ensuite bathroom. She stated in evidence that when she returned, the woman was still “not fully dressed” and the Complainant again told her that this was inappropriate at which point the woman got angry with her. The Complainant then left to complain at reception and says that the treatment she received there by a member of staff was both discriminatory and victimising.

Discrimination on the grounds of gender and race

Section 6(1)(c) of the Act states that a person shall not discriminate in providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

It is common case between the parties that the Complainant is not suggesting that the Respondent sexually harassed her, but rather that a guest did, and the Respondent then reacted to her complaint of this in a discriminatory way. I am satisfied that the Respondent is a provider of accommodation for the purposes of the Act.

Section 3 of the Act sets out what constitutes discrimination for the purposes of the legislation. Discrimination occurs where one person is treated less favourably than another person is, has been, or would be treated in a comparable situation, and that difference in treatment is connected to one of the discriminatory grounds listed in the Act. These grounds may relate to a characteristic the person currently has, had in the past, may have in the future, or which others believe the person has, even if that belief is incorrect.

The Acts identify a series of specific discriminatory grounds. These include gender, civil status, family status, sexual orientation, religious belief, age, disability, race, membership of the Traveller community, and victimisation.

Specifically in this case, sections 3(2)(a) and (h) of the Act state:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

Section 38A of the Act sets out the rules on the burden of proof in proceedings of this type. It provides that where a complainant establishes facts from which it can be inferred, on their face, that prohibited conduct has occurred, the burden then shifts to the respondent to prove that no such unlawful conduct took place. This means that once a prima facie case is made out, it is for the respondent to rebut the inference of discrimination or other prohibited behaviour.

I must first look therefore at whether or not the Complainant has met her initial burden of proof and established facts from which it can be inferred that prohibited conduct has occurred.

This burden of proof includes establishing that the Complainant has been treated less favourably than another who does not possess the protected characteristic.

Ms. Judy Walsh in her text Equal Status Acts 2000-2011, Discrimination in the Provision of Goods and Services [2012], Blackhall Publishing at paragraph 3.2.2 sets out this requirement well when she states:

Direct discrimination is not aimed at all adverse treatment of people by service providers. It is only aimed at treatment that occurs on a discriminatory ground. In order to establish whether the treatment in question is related to that ground, the law requires a comparison to be made with a person who was in a similar situation but does not share the complainant’s characteristic or status. The basic idea is that the reason for the treatment in question can be isolated because the difference between the two persons is the protected ground. The person used for the purposes of comparison is known as a ‘comparator’.

The Complainant in this case has not identified anyone who was or would be treated more favourably than her. There was no evidence provided of either a real or hypothetical comparator. For example, it was not shown that a man, or a person of a different nationality, would have been treated more favourably in a comparable situation.

In the absence of any evidence that she was treated less favourably than another person was or would be, the Complainant has not established facts from which it can be inferred that discrimination has occurred. She has therefore not discharged the initial burden of proof upon her in the first instance and it consequently does not pass to the Respondent to rebut. For that reason, I find that her complaints of discrimination on the grounds of gender and race are not well founded.

Victimisation

The Complainant has also stated that she was victimised within the meaning of the Act.

Victimisation refers to situations where a person is treated less favourably because they have previously taken certain steps under the Acts, such as making a complaint, acting as a witness, giving evidence, opposing an act that is unlawful under the Acts, or indicating that they intend to do any of these things. It is a standalone form of discrimination.

Section 3(2)(j) states:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

Victimisation can only be considered where the negative treatment a complainant received is directly connected to an action they took to assert their equality rights. In other words, the person must have done something protected under the Acts, and the adverse treatment must have happened because of that action.

The Complainant says that the criteria relevant to her is that she opposed by lawful means an act which is unlawful under the Act. She also stated in evidence that she had advised the member of staff at reception that she could make a referral to the WRC or the Gardai and so the final criteria, notice of an intention to take any of the actions specified in subparagraphs (i) to (iv) is also relevant.

The Complainant identified the adverse treatment as the Respondent’s refusal to allow her to extend her stay. The relevant person who interacted with the Complainant when she initially raised the issue at reception was not available to give evidence. However, the Respondent provided a copy of an email sent from that staff member to his line manager recording his version of the interaction. The email is dated 19th March 2025 and in the last paragraph it states “I refused to extend her booking asking her to speak directly with Laura and Carlos the next day”. This document supports the Complainant’s evidence that when she asked to extend her stay, she was refused. I am satisfied that the Respondent did refuse to extend the Complainant’s stay at the material time and that this act could be considered victimisation.

The question for me is whether or not this refusal was done as a result of the Complainant’s opposing an unlawful act or giving notice of her intention to take any of the actions set out above.

The Complainant’s evidence at the hearing is that this was in direct response to her opposing an unlawful act and the person that she interacted with was not present to give any evidence to the contrary. In the circumstances, I must accept the Complainant’s evidence.

For that reason, I find that the Complainant was victimised within the meaning of the Act.

Redress

Section 27(1) of the Act states that:

Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

In considering the appropriate redress in this case, I note the correspondence from the Complainant to the Respondent’s general manager after meeting with her in relation to this incident. It says “Lovely to meet you yesterday and thanks for your amazing attitude with me but overall thanks for berm able to see how important is to have firmolams and strategies to deal with with inappropriate customers and protect both staff and clients.” I also note that the Complainant did duly extend her stay for two further nights.

I do not consider this an appropriate case to make an order for compensation. While the Complainant could not immediately extend her booking, this was subsequently done and her email to the general manager expressed satisfaction with the outcome of her intervention.

However, the staff member who refused to extend her stay at reception, while offering very reasonable solutions to the problem such as speaking with the woman concerned or changing rooms, should not have refused to extend the Complainant’s stay. I find that the most appropriate redress in this case is to direct the Respondent to take a specific course of action. I direct that the Respondent should take steps to ensure that all public-facing staff have undergone, or are scheduled to undergo, training on individuals’ rights under the Equal Status Acts, in order to promote compliance with its statutory obligations.

For the reasons set out above, I direct that the Respondent should take steps to ensure that all public-facing staff have undergone, or are scheduled to undergo, training on individuals’ rights under the Equal Status Acts, in order to promote compliance with its statutory obligations.

Victimisation – burden of proof