The Gazette 1991

JUNE 1991

GAZETTE

to public services and facilities, specifically including hotels and many catering establishments. 2 Although there is no specific ban in Ireland on racial and related discrimination in entry to hotels 3 - and a case for general legislation inthis area does exist - the common law does contain a clear English decision which held that a refusal to permit a black person to stay in a hotel was illegal. 4 Interestingly, there was an early American decision 5 where a refusal to admit a black person was held to be reasonable where the likelihood of damage to the business could be established. It seems very unlikely that such a viewwould be accepted here now. This is an area where the wider public and constitutional policy ideals of racial harmony and equal opportunity would over-rule what may have been an honest, though self interested, motive for refusal. Furthermore, it was very clearly the intent of the Oireachtas when enacting s.3(1) that it would prohibit refusals on account of race. 6 Itinerants Many hotels refuse to admit itinerants on the basis that they are disruptive and may cause violence or damage to property. Itinerants can also be refused because of local opposition to itinerants being served and because of feared effect on the hotel's business. It is, however, difficult to see how any general anti-itinerant policy pursued by a hotel can be reasonable. 7 Such an attitude assumes, what is not the case, that all itinerants are necessarily

troublesome and disorderly. This can, effectively, amount to a form of racism. But, though s.3(1) may make any general policy of refusal to serve itinerants illegal, a hotel can still refuse to serve particular itinerants for the good reason - based on the experience of the hotel itself, and more problematically other hotels as well - that they have unjusti- fiably caused difficulty for the hotel " . . . S 3(1) may make any general policy of refusal to serve itinerants illegal . . in the past. Furthermore, where an itinerant wishes to attend a dance or a wedding function, s.3(1) does not apply, and consequently the hotel does not have to act reasonably in refusing entry to the person, subject only to the terms of any prior contract and, possibly, constitutional provisions. Accent and Demeanour It rarely happens that refusal of admittance to a hotel is explicitly stated to be because the person is judged by his accent, mannerism and general demeanour to be undesirable, or because it is thought he would lower the standards of the hotel. Yet, since many hotels, and especially higher grade ones, seek to give the impression of serving a select clientele and of "maintaining standards", there is, in fact, reason to suspect t hat hotels do sometimes disguise the real reason for refusal by insisting that the hotel is full, or that the person's

clothes do not conform to the hotel's dress code, or that the person is a trouble maker, drunk or cheeky. Certainly, if the reason given for the refusal is not the real one, then regardless of whether the real reason was, on its merits, acceptable or not, the lie told will probably render the refusal unreasonable. 8 This point has a special relevance where a hotel does not wish to let it be known that the refusal was made for what might be called " s n o b b i s h" reasons. Obviously, though, it is not easy for a prospective guest to show in court that the reason given was not the real one. Whether it is reasonable to refuse to admit a person because of his common appearance, or because of his background, depends on the weight to be attached to the deliberate policy of a hotel, based, perhaps, on good economic grounds, that business will be lost if it is obliged to admit such people. It could be suggested, for instance, that since there may be alternative local establishments where such a customer could be served, that greater scope should be allowed to modern hotels to set standards and prices appropriate to the socio-economic group which the hotel wishes to serve. 9 Undoubtedly, there is merit in this view. It is suported by the logic of s.3(2) of the 1963 Act, which requires a hotel to only charge whatever prices are current at the time in the hotel. 10 Yet, acceptance of this reasoning could denude the basic obligation in s.3(1) of much of its force because the duty to admit and serve in s.3(1) would then only

Doyle Court Reporters Principal: Áine O'Farrell Court and Conference Verbatim Reporting Specialists in Overnight Transcription 2, Arran Quay, Dublin 7. Tel: 722833 or 862097 (After Hours) T^ceHence in Importing since 19S4

179