The Gazette 1991

GAZETTE

JU LY/AUGUST

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. 11 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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