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1991
operate as regards whatever group
the hotel itself chose to cater for.
It seems unlikely that hotels in
Ireland enjoy the freedom to pick
and choose their guests because of
the definition of a hotel contained
in s.1(1) of the 1963 Act.
Section 1(1) defines a hotel as an
establishment which provides or
holds itself out as providing the
usual facilities for "all-comers",
and goes on to state that this
"includes every establishment
registered" with Bord Failte. The
central feature of this definition is
the idea of "all-comers", and not
just "some-comers", and indicates
that hotels are not free to choose
whatever group they wish to cater
for.
It is, of course, true that on one
reading of s.1(1) it could be
suggested that the use of the word
"includes" in the definition means
that all Board Failte registered
hotels automatically come within
the definition, regardless of
whether or not they are willing to
receive all-comers. Since Bord
Failte's registration rules say
nothing about rights of admission,
this could mean that registered
hotels do not have to receive all-
comers. They would still, of course,
be hotels w i t h in s.1(1), and
therefore subject to the duty to
admit and serve in s.3(1). Yet, to
interpret s.1(1) in this way would
mean t hat the pre-eminent
reference in the definition of a hotel
to "all-comers" would apply to the
tiny number of unregistered hotels
in Ireland, and would not apply to
the vast majority of hotels which
are registered with Bord Failte. It
seems
unlikely
t hat
this
interpretation would correctly
reflect the intent of the Oireachtas
in enacting s.1(1). A reading of the
Dail Debates preceding the 1963
Act makes it clear that all sides
envisaged an Act and an admission
obligation of general and wide
ranging application.
It seems likely, therefore, that the
more correct view of s.1(1), and its,
"The position seems to be that
hotels cannot select an income
group or market segment and
then decide whether to act
reasonably or not in relation to
that group or segment alone."
use of the word "includes", is that
all Bord Failte registered hotels are
to be automatically taken as being
establishements willing to receive
all-comers. Such a view avoids any
nonsense effects and agrees with
the-pre-1963 position. Any change
in the at position on such a
fundamental matter would have
required the clearest statutory
language to be used, and that
has not been the case. The
position seems to be that hotels
cannot select an income group or
market segment and then decide
whether to act reasonably or not in
relation to that group or segment
alone.
Dress Codes
Many hotels in Ireland, and
especially higher grade and Dublin
hotels, tend to enforce dress codes
on their customers, with the result
that they quite frequently refuse to
admit customers who do not
conform with their code.
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In the
higher grade and Dublin hotels, the
dress code tends to apply
throughout the entire hotel, and is
therefore enforced at the point of
entry into the hotel, whereas in
rural hotels that have dress codes
the code is often applied to just one
area inside the hotel - the
restaurant. The ostensible reason
for the dress code is that the hotel
does not want customers on the
premises whose outward dress and
appearance does not conform to
the maintenance or improvement of
the ambiance of the hotel, as set by
a combination of the standard of
dress and appearance of the
existing clientele's socio-economic
grouping and the hotel's own
efforts to create an ambiance
appropriate to the type of customer
it wishes to attract.
As indicated earlier, the dress
codes
usually
consist
of
prohibitions of customers wearing
certain or all types of jeans, sports
shoes, jackets, socks; or actual
requirements, such as wearing a
suitable jacket, tie, or shirt with a
collar. The legality of hotel dress
codes varies depending on whether
the code operates throughout the
entire hotel or in just the restaurant.
Entire hotel dress codes will be
considered first.
Entire Hotel Dress Codes
There are two ways in which the
legality of entire hotel dress codes
can be judged - one is by
considering the reasonableness of
the code as it stands, and the other,
and more interesting way, is by
examining whether the code is
merely a cover, a facade to enable
the hotel to refuse admittance to
"undesirables". In other words, and
to borrow a concept from sex
discrimination law - whether the
operation of the code amounts to
indirect social discrimination
against a particular segment of the
population by setting standards of
dress which are not absolutely
essential to the successful running
of the hotel and which a signifi-
cantly greater proportion of one
social group can comply with than
another. If the dress code causes
indirect social discrimination, then
it is almost certainly in breach
of s.3(1) of the Hotel Proprietors
Act 1963, because its use to
achieve an unstated and masked
indirect effect is, by definition,
unreasonable.
Social Discrimination
The determination of whether a
hotel's dress code causes indirect
social discrimination involves the
consideration of a number of
matters:
(1) The individual items of
clothing, or style of clothing,
or footwear of prospective
customers.
(2) The degree to which a hotel
is allowed to pick its own
ambiance given the definition
of a hotel in s.1(1) that it
provide for "all-comers".
(3) The finding of a rational
relationship, or linkage, bet-
ween the item of clothing and
the operation or ambiance of
the hotel.
(4) The degree to which different
social groupings tend to wear
such items, or styles, of
clothing.
(5) Whether the hotel code is
operated in an even-handed
and consistent manner and
whether facilities are made
available by the hotel to
enable non-complying cus-
tomers to comply with the
dress code.
While a detailed consideration of
all of these factors is beyond the
scope of this essay, some remarks
may be made about point (3) above,
since it also relates to judging the
reasonableness of a dress code on
its face value, without reference to
any hidden effects. Two points may
be made.
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