Ms Bukola Ogunlade and Ms Sola Oyefeso (Represented by the Equality Authority) V Michael Guiney Limited, Cork, (Represented by Dermot Sheehan, Reddy Charlton McKnight Solicitors)
The complainants each referred a claim to the Director of Equality Investigations under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Dispute
This dispute concerns claims by Ms Ogunlade and Ms Oyefeso that they were discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of their race, colour, nationality or ethnic or national origins in that on 19/1/01 they were denied access to the respondent's premises. The respondent does not deny that one of the complainants was refused access, but states that it was on grounds other than the complainant's race. The respondent maintains that the second complainant was not refused access.
3. Summary of the Complainants' case
The complainants entered the respondent's premises on 19/1/01. Ms Ogunlade and Ms Oyefeso were refused access and asked to leave. Since Ms Ogunlade and Ms Oyefeso feel that this is a case of mistaken identity, and that Ms Ogunlade was wrongly identified, they maintain that this refusal and the manner in which they were treated was because of their colour.
4. Summary of the Respondent's Case
The respondent refused access to Ms Ogunlade because of her alleged involvement in an incident on 5/1/01 in which a customer harassed staff. Ms Oyefeso was not refused access to the store.
5. Evidence of the Parties
5.1. Complainants' Evidence
Ms Bukola Ogunlade, (first complainant)
- Ms Ogunlade was not in the store on 5/1/01, as alleged by the respondent.
- On the 15/1/01 Ms Oyefeso had a baby shawl to change on behalf of another woman. Ms Oyefeso took Ms Ogunlade to the shop, as she had not been there before. During that visit Ms Ogunlade did not buy anything.
- While Ms Oyefeso was dealing with the baby shawl in the shop Ms Ogunlade was looking around the shop. She did not join Ms Oyefeso at the till.
- There were four adults and two children in the group on 19/1/01. Ms Ogunlade was first into the shop and a lady told her she was not allowed to enter the shop. When Ms Ogunlade asked why, she was told "no reason". One of the security guards told her that she had harassed a member of staff a couple of weeks before.
- Ms Ogunlade pointed out that she had only been in the shop for the first time onthe previous Monday. She was asked to leave. There were four security guards and one lady involved. Ms Ogunlade asked to see the manager who, she was told, was busy.
- Ms Ogunlade insisted on seeing him. She explained that at this point she was very angry and that she could not believe the accusation.
- She was told the incident was on video.
- The manager did not address her. He just asked security to get her out. They threatened to call the Gardaí. She replied that she had done nothing. The security guard told her that he was the one that spoke to her on the 5/1 and had told her to leave.
- At that point the complainant's group was circled by security staff. There were many people in the store and this treatment was very embarrassing.
- The other two adults have not made complaints possibly because they were concerned that it may affect their status in the country.
- Ms Ogunlade has dealt with NASC1. She knows her rights and is content that she had done nothing wrong.
Ms Sola Oyefeso, (second complainant)
- On 15/1 she was exchanging a shawl for another woman. Ms Ogunlade did not know the respondent's premises. Ms Oyefeso asked Ms Ogunlade to accompany her. They went straight to the second floor, where the children's department is located, without any problem. The required colour of baby shawl was not there so they got a refund and left the shop.
- While she was changing the shawl Ms Ogunlade was strolling around looking at the goods in store.
- On 19/1 there were four adults. Ms Ogunlade went in first. A lady put up her hand and said you must leave. The argument continued back and forth. Ms Ogunlade was told she was barred. One security man said leave but Ms Ogunlade said she was not going to leave. The talk like that was coming from all directions, and maybe the security staff were trying to scare them by saying they would call the Gardaí. Ms Ogunlade said 'okay but I want to know why I am asked to leave'.
- They were told that they could not see the manager, but this was insisted upon.
- When the manager arrived he did not speak to them but just indicated that they should be escorted out. He then went back to the office.
- Ms Ogunlade said they should get in touch with their lawyer and she contacted the NASC Office.
- Ms Oyefeso did speak to the security staff. She told them that there must be a mistake. She understood from the security people's conversation that someone
1 NASC is the Irish immigrant Support Centre, St Marie's of the Isle, Sharman Crawford Street, Cork City. had harassed staff. She told them "This lady is not Buky" referring to Ms Ogunlade. "Us blacks, we all look alike." The lady security guard said no. - Ms Oyefeso had been going to the respondent's store about once or twice a week for about six months prior to the incident without any difficulties.
Complainant Evidence submitted after the hearing
- The names of the other two adults with the complainants on the 19/1/01 were supplied.
- A copy of the birth certificate relating to Ms Ogunlade's baby was produced.
5.2. Respondent Evidence
Ms Nicola Dineen, member of respondent's staff
- Ms Dineen was working in the Babies department on 5/1/01. A Lady asked her for a blanket from a shelf across the room. When the customer was told that there was one on a cot on display, she shouted across the room that she wanted "this one" indicating the one on the shelf. Ms Dineen indicated that the customer would have to wait her turn and while the customer was unhappy about this she waited. A manager got the blanket for the customer who continued shopping around for about 15 minutes before paying for the blanket.
- At the checkout Ms Dineen took out the blanket, ostensibly to fold it, and the customer asked if she was being accused of shoplifting.
- Ms Dineen replied that that was not the case at all. The customer's friend said
"come on" so she paid, got her change and stormed off. - Ms Dineen was confident in her identification of this customer as Ms Ogunlade.
Ms Louise Moynihan, member of respondent's staff
- At around 1:05 on 5/1 Ms Moynihan was working on the till in the Babies department. There was a large queue. A woman came to the side of the till for a refund. She was told she would have to wait until the others waiting had been dealt with and she was not happy about this. On her turn Ms Moynihan took the receipt and the blanket and returned the £19.99. The customer began counting it and then threw it across the counter. Ms Moynihan had to get a manager to do a "no-sale" and open the till. The customer was given £20.00.
- Ms Moynihan was confident in her identification of this customer as Ms Ogunlade.
Ms Amy Scannell, Store Detective
- On 5/1 Ms Scannell was returning from lunch and from the top of the stairs in the Children's department she could hear a customer being quite aggressive and loud spoken. She saw the money being thrown onto the table. The customer proceeded down the stairs and Mr. Cronly came after her and spoke to her. Ms Scannell had been about 5 to six metres from the incident and had heard references to money.
- On 19/1, at about 12:20, she saw the first complainant, Ms Ogunlade, enter. She told Mr. Geasley that she was not allowed in. She then approached the complainant and told her she could not come in. Ms Ogunlade started shouting. Ms Scannell said that her friends were welcome in the store. Ms Ogunlade asked to speak to the manager. Ms Scannell left the group to get the manager while Mr. Geasley remained at the scene. The Manager spoke to Ms Ogunlade asking what was the problem. He could not say much however, as she was shouting. Ms Ogunlade said they were being racist and asked why could her friends not come in. She was told her friends were welcome. She asked why she was not being allowed in and was told it was because of her aggressive behaviour. She stood right in front of Ms Scannell and started shouting. Ms Scannell said she would have to call the Gardaí.
- Ms Scannell stated that she explained the reason for the refusal of admission immediately, rather than that she told them that she did not have to give a reason.
- It is the responsibility of the security person who recognises a person who is barred to make the approach. Mr. Geasley could not do it on this occasion since he had not been present during the first incident.
Mr. Matt Geasley, (Lunch-time security cover 15/1/01 and 19/1/01)
- Mr. Geasley was not on duty on 5/1.
- On 19/1/01 he was approached by Ms Scannell who said the person who arrived was barred.
- It is necessary to get confirmation from the manager before refusing admission. Only the manager takes this decision.
- Mr. Geasley indicated that the group could not enter the shop until he had been given confirmation.
- When the manager arrived Mr. Geasley confirmed with him that Ms Ogunlade was barred and told her so.
- Mr. Cronly arrived and confirmed that Ms Ogunlade was the customer who had caused a disturbance on the 5/1.
- At the end there was himself, Ms Scannell, Mr. Cronly and the manager involved. Mr. Geasley radioed for another security guard. When he arrived the group left.
- Mr. Geasley thought that they did not believe him that he would call the Gardaí.
Mr. Pat Cronly, (Security Officer)
- On 5/1, there was a lady being a bit aggressive and loud at the checkout, while getting a refund. This was about 2 metres from him. He saw her tossing back money over the counter. From his perspective the customer was being aggressive with a member of staff.
- He could not be sure if he had mentioned this incident to the manager. Mr. Cronly made the decision to ask her to leave the store in this instance.
- He told the customer "Your behaviour is unacceptable, please leave the store."
- On 19/1/01, Mr. Cronly had been eating his lunch in the canteen when he was told that he was needed downstairs. He approached the complainant, Ms Ogunlade, and stood directly in front of her. While she seemed to be shouting at something behind him, he was focused on the problem.
- He asked her two or three times to calm down though she took no notice. He presumed that it was after the incident when he first spoke to Mr. Geasley.
- Mr. Cronly said he was focusing on the instantaneous situation. It did not seem to matter how it arose.
- When asked to confirm his identification of the customer on 5/1 as Ms Ogunlade on 19/1, Mr. Cronly said when he was there he was dealing with the situation on hands. He was not there to identify.
- When he asked them to leave, he agreed that being black was mentioned, as were the videotapes.2
- When it was put to Mr. Cronly that he could be seen pointing his finger at Ms Ogunlade in the video, he replied that if he was pointing it was to attract attention. As Ms Ogunlade was shouting it was necessary to speak loudly enough for her to hear.
Mr. O'Donnell, (Store Manager)
- The store's policy is that everyone is welcome, and the minimum standards of behaviour apply. They have no written admission policy.
- Only the security staff that were involved in a previous incident can ask a person to leave subsequently.
- Security staff are expected to report incidents to him.
- Barrings are very rare and while he has no numbers these are not astronomical.
- Ms Ogunlade is barred because of the incident on 5/1. The store has no problem with Ms Oyefeso.
- On 5/1 Mr. O'Donnell was not a witness to the incident. Mr. Cronly brought it to his attention after lunch, explaining that the customer had been abusive to staff. He investigated it with staff. When he spoke to Ms Moynihan she said the decision to ask the customer to leave was the correct one as it was the worst situation she had witnessed. In those circumstances Mr. O'Donnell said there is a need to protect staff.
- On 19/1 Ms Scannell had identified Ms Ogunlade as the person involved in the incident on 5/1. He could not go immediately to Ms Ogunlade but when he did he
2 This appears to support Ms Ogunlade's contention that the respondent mentioned that the incident on 5/1/01 was captured on video and Ms Oyefeso's contention that she suggested that all blacks look alike. said, "Can we calm down and discuss this?" He asked Ms Scannell if she was certain that this was the person from the 5th and she confirmed that she was. He was making no impression on Ms Ogunlade. In relation to Ms Oyefeso he said that everyone was free to shop there except Ms Ogunlade because of the incident on 5th. - Mr. O'Donnell wanted to stress that he did speak to Ms Ogunlade or made an attempt to speak to her. He was told the Gardaí had been called. He was sorry that the incident had reached that stage.
- Mr. Cronly arrived and confirmed the identification.
- Mr. O'Donnell was perfectly content that the identification had been made and the correct person asked to leave. He asked Ms Scannell twice and on hearing Mr. Cronly he was content.
- He later took out the security videotape for the 5/1 and showed both it and the tape for 19/1 to Ms Moynihan and Ms Dineen. They were satisfied that it was the same person.
- Mr. O'Donnell undertook to identify the security staff that were on duty on 15/1 and forward this information after the hearing.
- Mr. O'Donnell stated that Mr. Geasley must be mistaken when he said that they had discussed the confirmation of identification. At that stage Mr. O'Donnell had spoken only to Ms Scannell.
Respondent evidence submitted after the hearing
- Details of the security staff on duty in the respondent's premises on 15/1/01. These were Mr. Pat Cronly with Mr. Matthew Geasley on lunch cover.
- A copy of the security firm's training manual.
- Copies of two purchase receipts, two refund receipts and two refund dockets, numbered 21812 and 21844.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ...
(h) that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")"
Section 5 (1) states that "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 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought".
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (e.g. the race ground)
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone of a different race or colour received, or would have received, in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7. Conclusions of the Equality Officer In this case the complainants claim that they were discriminated against on the basis of their colour when they sought and were refused service on 19/1/01.
7.1. Prima Facie Case
Applicability of the Race ground
The issue here is whether or not the person to whom the complainants should be compared is of a different race, colour, nationality or ethnic origin. The complainants are both black. The majority of customers who can be seen on video entering and leaving the respondent's premises on the dates in question are white. I am satisfied that it is appropriate to compare the treatment of the complainants with the treatment one of these white customers would receive and that the race ground is applicable at least on the basis of the complainants' colour.
Evidence of specific treatment
Both parties agree that there was a denial of service in relation to Ms Ogunlade. Ms Oyefeso submits that she was also denied service but this is disputed by the respondent. Ms Oyefeso submits that the Manager did not address her at any stage and that she was never given any indication that she could shop. All the indications given were that the group of which she was part should leave the shop. In response, the manager states that he did attempt to communicate with Ms Ogunlade, and this is supported by the video evidence. The video does not show any communication between the manager and Ms Oyefeso. What is apparent is that all the while through the incident a security officer remained with the group. This security officer is generally standing between Ms Oyefeso and the store. Only at one point did she go to join Ms Ogunlade and presumably this is the point where she indicated that it must be a case of mistaken identity. While this is slightly off-camera, it appears that Ms Scannell is there in conversation. It appears therefore that Ms Oyefeso was never out of the company of a security officer while in the store. Therefore, even if it had been indicated to her that she may shop, the general situation was not conducive to shopping. On video it is possible to see that the focus of the situation was on Ms Ogunlade. She has admitted that she was angry at the accusation and there appears to have been a lot of shouting and commotion. While it is possible that Ms Oyefeso remained with her companion who was experiencing difficulties out of loyalty even though she had been told she could shop, I find it much more likely that she was not told this directly. Ms Scannell stated that Ms Ogunlade at one point asked why could her friends not come in. If Mr. O'Donnell did in fact say that everyone was "free to shop there except Ms Ogunlade" no evidence has been adduced to confirm that he said this to Ms Oyefeso. I find that on the balance of probabilities Ms Oyefeso was not directly told that she could shop and that she was refused because of her association with her companion Ms Ogunlade. While the form of the refusal was not verbal, it was a physical barrier or deterrent in the form of one security guard or another. I find that this establishes specific treatment of both complainants.
Less Favourable treatment
In relation to key element (c) at 5.6 above I must now consider whether the refusal of service was such that a white person in the same circumstances would be treated more favourably.
The respondent states that Ms Ogunlade was refused because she was identified as the person who had behaved aggressively towards staff on 5/1/01 during the processing of a refund. The respondent has indicated the individual responsible on the security video. She entered and left the store twice on that date. During the first visit she purchased a baby blanket and during the second visit she returned it. The respondent has produced the staff that were at the receiving end of this aggressive behaviour. They have described the incidents, both the initial purchase and the subsequent return of the article, in a wellrounded and convincing manner. (However, the time of the refund incident initially given by Ms Moynihan as 13:05 has been amended to 14:03.) This evidence is supportedby the till receipts of both transactions and the refund docket. The security staff have also described the incident from their perspective, with the result that the overall perception of the incident is robust.
There are some inconsistencies that may have many explanations. According to the till receipts the assistant who dealt with the initial purchase was Nico[l]a as given in evidence. However, the refund receipt was processed by 'Donal' rather than by Louise, that is Ms Moynihan. The time of this receipt on the till system is 14:03:56. The customer responsible for these incidents can be seen leaving at 14:03 also, and it should be recalled that Mr. Cronly would have delayed her to some extent in traveling from the children's department on the second floor to the door. However, it was also mentioned in evidence by Ms Moynihan that she had had to get a manager to do a "no-sale" and open the till. It is possible that the staff did not want to delay this customer unduly and that the processing of the refund was completed after she had been given her refund and had left.
The refund docket number 21812 is largely incomplete in comparison with the docket that related to Ms Oyefeso's refund on 15/1/01 and this might support the urgency of the situation. On the balance of probabilities I am satisfied that this customer did behave aggressively towards the staff on 5/1/01.
On the 5/1/01, Ms Dineen, Ms Moynihan and Mr. Cronly all interacted in some way with the customer at relatively close quarters. Ms Scannell was a witness to the latter part of the incident at the till from a distance.
On 5/1/01, after the incident at the till, Mr. Cronly took the decision to ask the customer to leave the store. On the basis of Section 15(1) of the Equal Status Act, 2000 this is entirely acceptable. This customer had already indulged in what could reasonably be termed disorderly conduct, and on the basis of Mr. Cronly's responsibility, knowledge and experience, the store was entitled to ensure that this conduct was avoided in the future by withdrawing the invitation to shop from this customer. Ms Scannell stated that on the 19/1/01, she identified Ms Ogunlade as the customer from the 5/1/01, that she put Mr. Geasley on notice that this was someone who was not welcome in the store and that she went directly to Ms Ogunlade to tell her she could not come in. On video it is very clear that Ms Scannell went straight to Ms Ogunlade and spoke to her, and impeded her progress into the store. This happened before the rest ofMs Ogunlade's group could enter the store. Ms Scannell does not appear to subsequently go to the rest of the group to refuse them access, as one might expect if the refusal related to their colour or race. The incident, as it develops is centred on Ms Ogunlade. Based on this and the evidence given orally, I am satisfied that Ms Scannell, rightly or wrongly, identified Ms Ogunlade as a customer who had previously caused trouble and who was not welcome in the store. In accordance with Section 15(1) Ms Scannell was the person in the situation with the appropriate responsibility, knowledge and experience required. A reasonable person would arrive at the belief that a person who had been aggressive and disorderly (throwing money back across the counter at the person on checkout duties) on a previous occasion could do so again. On the basis of her identification MS Scannell refused Ms Ogunlade access to the store. I find that Ms Scannell made this decision because she honestly believed that this was the earlier customer, and not because Ms Ogunlade was black.
I find that the refusal was based on Ms Ogunlade's identification as the customer who had behaved aggressively towards staff on 5/1/01. I am satisfied that where a white person was identified as a customer who had previously behaved in a manner that could be considered disorderly, they would also be refused in accordance with section 15(1) of the Equal Status Act, 2000. I find therefore that the refusal was not on the basis of the complainant's colour and that consequently she has failed to establish a prima facie case of discrimination on the race ground. Ms Oyefeso had been shopping in the store for about six months without having been refused. It would appear therefore that something must have happened to change that. As mentioned above Ms Oyefeso received specific treatment from the respondent. However, her treatment relates to discomfiture with the chaperoning by security staff. The security staff's presence was in response to Ms Ogunlade's entrance into the store. Since Ms Oyefeso's refusal was by association with Ms Ogunlade, it follows that she was not refused on the grounds of her colour and that she has also failed to establish a prima facie case of discrimination.
Indirect discrimination
The complainants' representative submitted that this was a case of mistaken identity, and that the complainants, by virtue of their colour were more difficult to identify than white people. Section 3(c) of the Equal Status Act, 2000 is as follows:
(c) (i) [where] a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) the person is obliged by the provider of a service (within the meaning of section 4(6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.
The complainants both belong to a category of persons who share a common characteristic, their colour. In a situation where a past troublemaker is black, then avoidance of being recognised as that troublemaker is more difficult for black people by virtue of their colour. This is based on the assumption that on accepts it is easier for the indigenous population to recognise members of their own group because of familiarity with their features. However, it is a moot point whether or not a person's identification, or non-identification as a troublemaker, is something with which they have to comply in accordance with 3(c)(ii) above. In a situation such as this the burden of proof is on the person alleging indirect discrimination to prove on the balance of probabilities that such is the case. An assertion is not enough to amount to proof. Since no evidence was adduced to support the suggestion that it is substantially easier for a white person to be recognised, the complainants have not discharged that burden. Therefore this does not amount to indirect discrimination in accordance with the Act in this case.
Events after the initial refusal
As the incident on 19/1/01 developed, it would have been difficult for other customers not to notice that something was going on. A group of four adults and two children were positioned straight in from the entrance. This group took up a large amount of space in from the entrance and among the displays. Mr. Geasley remained with them at all times and he was in uniform. Added to this there was some shouting. While I accept that it must be embarrassing and infuriating in the extreme to be accused of something, perhaps wrongly, Ms Ogunlade's behaviour did not help to resolve the matter. On video, she can be seen moving around clearly angry and her attitude appears to be hostile, particularly to Mr. Cronly. She admitted she was angry at the accusation which she felt was wrongly made. By behaving in this way Ms Ogunlade continued to draw attention to herself and to some degree, may even have confirmed Ms Scannell's opinion that this was someone who might cause a disturbance. When Mr. Cronly arrived, it is understandable that from his perspective there was a disturbance underway. However, shortly after this, Ms Ogunlade can also be seen standing with her back towards a rack of clothes with no less than five security people around her in a relatively tight arc. This included Mr. Cronly, Ms Scannell, Mr. Geasley and two other security men that arrived from other stores having been called by radio. Ms Oyefeso can be seen standing beside this group. As the complainants moved towards the door, it can clearly be seen that the security staff wanted their entire group out of the store. They, the security staff, spread themselves out in a line between the complainants and the store, gradually moving towards the door. This line would have been intimidating to anyone walking into the store and indeed after the complainants were outside, and followed out by Mr. Cronly and Ms Scannell, at least one other customer had to ask for a way through the security staff to exit the store. While this treatment was certainly unwelcome to the complainants, I am satisfied that it was not on the grounds of their race or colour but because of the scene that had developed in the store. I find that this entire incident, after the refusal, was a situation that escalated out of control on the part of both sides.
Mistaken Identity
In relation to the identification of Ms Ogunlade as the aggressive customer on 5/1/01, I have the following comments to make. As mentioned above, Ms Dineen, Ms Moynihan and Mr. Cronly all interacted in some way with the customer at relatively close quarters on the 5/1/01. Ms Scannell was a witness to the latter part of the incident at the till from a distance. On 15/1/01 both complainants were in the store and the time of the refund on the receipt is 14:51:06. According to the security firm's attendance sheet for that day Mr. Cronly was on duty at that time having had lunch from 13:00 to 14:00 covered by Mr. Geasley. There appears to have been no store detective on duty that day. Therefore, either Mr. Cronly did not come across Ms Ogunlade while she was in the store or if he did, he did not identify her as the individual who had caused a disturbance on 5/1/01. A further possibility is that Ms Ogunlade was not in the store on 15/1/01, although there is no reason to doubt her assertion that she was. A comparison of the parent's names on Ms Ogunlade's baby's birth certificate and the name on the refund docket dated 5/1/01 show no similarities. This does not suggest that it was not her, it simply does not support the contention that it was. Both Ms Ogunlade and Mr. O'Donnell agree that Mr. Cronly identified Ms Ogunlade as the person who had behaved aggressively towards staff on 5/1/01, although Mr. Cronly did not confirm this at the hearing. However, Ms Scannell was responsible for the refusal and it is therefore her treatment of the complainants that is relevant. On 19/1/01 Ms Scannell identified the complainant before she entered the store and from quite some distance. When Mr. Cronly arrived, the only other person to allegedly see this person on both dates, he concentrated on the situation as he saw it. When asked at the Ogunlade & Oyefeso V Michael Guiney Limited, Cork hearing to confirm his identification of Ms Ogunlade as the person from 5/1/01 he stated that he was not there to identify the complainant, but to handle the situation. Neither Ms Dineen nor Ms Moynihan saw Ms Ogunlade in person on 19/1/01. They were shown both videos for comparison purposes. Only Mr. Cronly saw the customers close up on both dates and it is interesting that during the hearing he declined to confirm the identification of Ms Ogunlade as the customer from 5/1/01, by saying that his purpose in joining the group on 19/1/01 was not to identify her. I find this more persuasive than the identification by those staff that saw one incident, compared it to the video footage of another, and confirmed identification 21 months later at the hearing. Having seen the video evidence, while there are similarities between the two individuals, I would be reluctant to rely on it for identification purposes.
It is therefore possible that this was a case of mistaken identity. In relation to the difficulties relating to the identification of a person who has been asked to leave, this case to hand clearly reflects how difficult it is:
For a respondent to prove that the person in a subsequent incident is the same person with whom they had previously had difficulties,
For a complainant to prove that it is not.
In this case the respondent did endeavor to have the identification as accurate as possible with the resources they had available at the time. I would recommend that the respondent and the security company continue in this manner, and endeavor to refine their identification procedures to aid the identification of people who are no longer welcome in the store, in order to avoid subsequent erroneous identifications of people with the consequential damage to their good names.
8. Decisions
8.1. Decision DEC-S2003-016
I find that Ms Ogunlade was not discriminated against on the Race ground contrary to Section 3(1) and 3(2)(h) of the Equal Status Act and in terms of Section 5(1) of that Act.
8.2. Decision DEC-S2003-017
I find that Ms Oyefeso was not discriminated against on the Race ground contrary to Section 3(1) and 3(2)(h) of the Equal Status Act and in terms of Section 5(1) of that Act.
Bernadette Treanor
Equality Officer
27 February 2003