Bridget O'Brien (represented by the Equality Authority) V Iarnród Eireann/Irish Rail
1. Dispute
This dispute concerns a complaint by Ms Bridget O'Brien that she was discriminated against, contrary to the Equal Status Act 2000, by Iarnród Eireann. The complainant maintains that she was discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000.
2. Summary of the Complainant's Case
This dispute concerns a complaint by Bridget O'Brien that, while travelling on an Iarnrod Eireann service from Tralee to Dublin on 26 July 2001, she was accused of complicity in the theft of another passenger's luggage. She says that, without any prior notification of the allegation, she was removed from the train at Portlaoise where a Garda subjected her luggage to a search on the platform. Ms O'Brien believes that she was treated in this manner because she was recognised as a member of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondents reject that they discriminated against the complainant and maintained that she was treated the same way as anyone else would have been treated in similar circumstances.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred 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 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O'Byrne, 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, 2000.
5.1 Evidence of Complainant, Bridget O'Brien
- Mrs O'Brien travels from Tralee to Dublin several times each year to visit relatives.
- On 26 July 2001, she boarded the train in Tralee after 6 pm and was accompanied by her son (9) and her daughter (8).
- Mrs O'Brien had some clothes and personal items with her in a black plastic sack.
- They changed trains at Mallow around 8 pm where she sat in a smoking carriage
- Shortly after the train left Mallow, there was an announcement about a passenger having lost some luggage
- During the early part of the journey, her children left her carriage to go to the shop a few carriages away
- Some time after the announcement, the Ticket Collector came into her carriage and starting searching the luggage compartment over her head and the space under her seat.
- He did not search the area around other passengers as thoroughly.
- The Ticket Collector did not speak to her while he was conducting his search.
- As the train was pulling into Portlaoise station,, she heard the Ticket Collector roaring
" Where's the bag?" at her son who was returning from the toilet - She immediately asked the Ticket Collector why he was accusing her son but got no reply
- The Ticket Collector made no reference to the fact that an allegation had been made against her and her children, nor was she told that the Gardai had been summoned
- There was no doubt in her mind, from the Ticket Collector's attitude and the manner in which he dealt with her children, that he recognised them as Travellers
- The Ticket Collector then left her and went to talk to some Gardai who were on the platform
- Two of the Gardai then boarded the train and asked her to step onto the platform with her luggage (a black sack containing mainly clothes).
- On the platform, the Gardai told her an allegation of larceny had been made against her and asked her to empty her black sack. A Garda then went through her belongings .
- The Garda then told her everything was in order and that she could put everything back in her bag and reboard the train.
- She was highly embarrassed as the search on the platform was conducted in full view of other passengers sitting on the train.
- This search was overseen by the Ticket Collector. Also present was the passenger whose luggage had been stolen. This was the first time that she had seen this gentleman on the train.
- She said to the Garda that she had been discriminated against and victimised. In response, the Garda told her she "had nothing to be ashamed of".
- She asked the Garda for his name and got back on the train
- The Ticket Collector did not speak to her after that.
- She received no apology from the Ticket Collector nor anyone else, nor has anyone from CIE contacted her since about the incident.
- Mrs O'Brien has travelled on the Tralee to Dublin service a few times since
Evidence of Respondents - Michael Anderson, District Manager
- Iarnród Eireann, normally have a Driver, Ticket Collector and a Train Guard on board the Mallow to Dublin train
- In situations where incidents occur (thefts, trouble etc) the Ticket Collector or Guard call the Driver and ask him to arrange for the Gardai to meet the train at the next convenient station.
- In such situations, the driver usually contacts the Central Traffic Control Office in Dublin who make the necessary arrangements with the Gardai. Every effort is made to keep the train running on schedule
- The Company have built up a good working relationship with the Gardai, in relation to these incidents, over the years.
- All front line staff have now received training in the provisions of the Equal Status Act 2000.
- In 2002, the company developed an awareness training program on cultural diversity for all front-line staff. These courses are held in Inchicore and presented by the company's equality officer. This training had not commenced at the time of this complaint in July 2001.
Evidence of Respondent - Gareth Nolan, Ticket Collector
- Mr Nolan was on duty on the Mallow to Dublin evening train on Thursday 26 July 2001
- He recalls that the service was running behind schedule that night. The train was waiting in Mallow for about 15 minutes before departing
- 41 passengers (including Mrs O'Brien and her children) transferred from the Tralee train at Mallow while 60 others boarded at Mallow itself.
- Several minutes before the train left Mallow station, a male passenger reported to Mr Nolan that his luggage had been stolen. The passenger described it as a black shoulder bag
- The passenger said that he had left it on the train and that it had gone missing while he was in the toilet.
- When Mr Nolan suggested that perhaps he had left it on the platform, they both alighted from the train, checked the platform but found nothing.
- They both then reboarded the train and Mr Nolan told the passenger that he would help him search for his luggage after he had finished checking tickets.
- While checking tickets, Mr Nolan recalls seeing Mrs O'Brien and her children.
- He specifically remembers the children running around and recalls asking the girl to sit down as she was barefoot and he was concerned that she might cut her feet.
- He did not recognise the family as Travellers at the time and did not discover this until the Gardai were speaking to Mrs O'Brien on the platform
- When he was finished checking tickets, he spoke again to the passenger who had lost his luggage and asked him whether he suspected anyone in particular
- The passenger said that he himself had not seen anyone near his luggage but had a suspicion that Mrs O'Brien and her children may have had some involvement.
- The passenger then told Mr Nolan that he had spoken to two other passengers who were sitting near him who had told him they were suspicious of two children they had seen going up and down the carriage. The two passengers had admitted to the passenger, however, that they had not seen the children go near his luggage.
- When Mr Nolan asked the passenger how sure he was about the accusation, the passenger replied that it was "50/50"
- The passenger did not identify the two passenger witnesses to Mr Nolan nor did Mr Nolan ask who they were.
- On the basis of this information, the passenger insisted that Mr Nolan should check to see if there was any evidence that the children, who Mr Nolan had identified as belonging to Mrs O'Brien, had taken his luggage.
- Mr Nolan informed the passenger that "the law is very tricky" with regard to this type of situation and asked him whether he had any hard evidence. The passenger repeated that he was going on the word of the two passengers who had "surmised" that the children had been involved
- Mr Nolan then undertook a thorough search of the train, including Mrs O'Brien's carriage. He checked all the luggage racks in Mrs O'Brien's carriage and did not treat her any differently than other passengers.
- Mr Nolan gave Mrs O'Brien no indication that any allegation had been made against her or her children
- Having failed to locate the luggage, the passenger insisted that the Gardai be called to search Mrs O'Brien
- Mr Nolan again warned the passenger that he should be careful, unless he had any hard evidence, as "the law was tricky" but the passenger insisted that he wanted the Gardai.
- Mr Nolan said that he was reluctant to ask for a specific search of one passenger and suggested that the Gardai be asked to carry out a full search of the train. The passenger, however, insisted that the Gardai should concentrate on Mrs O'Brien as, in his opinion, she was the prime suspect. On account of the passenger's insistence, Mr Nolan felt that he was obliged to act on the passenger's request.
- Mr Nolan then asked the Train Guard to radio for the Gardai to meet the train in Portlaoise.
- As they were pulling into Portlaoise, Mr Nolan said that Mrs O'Brien's son made a comment to him in the carriage. Mr Nolan thought the boy said that "he had found the bag" and asked him where it was. At that point Mrs O'Brien interjected and said "Don't accuse my son" .
- He then went out onto the platform to speak to the two Gardai who were waiting
- Mr Nolan informed the Gardai that a passenger had asked for the Gardai to be called as he suspected a lady of stealing his luggage
- Mr Nolan explained to the Gardai that he himself would prefer if the Gardai searched the whole train
- He then identified Mrs O'Brien to the Gardai and they asked her to step off the train with her luggage which was in a black plastic bag
- The Gardai searched Mrs O'Brien's bag but found nothing
- The passenger whose luggage was missing watched proceedings but made no comment
- Mr Nolan did not take the passenger's name or details
- He did not make a written record of the incident
- Mr Nolan did not speak to Mrs O'Brien after the Garda search
- Mr Nolan is not aware of anyone from CIE having contacted or apologised to Mrs O'Brien since the incident.
- To Mr Nolan's knowledge the luggage was never found
- At the Hearing, the respondents could not produce the name of the passenger who made the allegation against Mrs O'Brien
Evidence of Respondents Mark Phelan, Station Guard, Portlaoise
- On foot of a call from the Central Control Office, Mr Phelan arranged for the Gardai to come to the station
- He had been told that a passenger had had his luggage stolen and that he knew who had taken it and wanted the Gardai to search the lady in question
- At the station, the Gardai first spoke to the passenger concerned before boarding the train and asking Mrs O'Brien to get off the train
- The train was delayed for about 15 minutes while the Gardai searched Mrs O'Brien's luggage and took the names of those involved
Evidence of Garda Liam Campbell
- At 9.45 pm on Thursday 26 July 2001, Garda Campbell received instructions to go to Portlaoise Station to investigate an allegation involving larceny of items and money on the Cork to Dublin train
- At the station, Mr Nolan met him and told him that a passport and some Irish and German money had been taken from a male passenger's luggage
- The passenger, whose name Garda Campbell was able to produce at the Hearing, spoke to him and told him that the items had been taken at Mallow station
- Garda Campbell recalls the passenger showing him a luggage bag from which the items were taken
- The passenger identified Mrs O'Brien as the suspect and referred to her two children who had been running around
- When Garda Campbell asked whether there were any witnesses, the passenger told him that there were two clear witnesses to support the allegation. Garda Campbell got the impression that one of them was a CIE employee
- Garda Campbell asked to speak to the witnesses but neither could be located
- While the non-production of the witnesses gave him some cause for concern, he was persuaded from the evidence of the passenger and Mr Nolan, that Mrs O'Brien was a realistic suspect
- Mr Nolan then led Garda Campbell to Ms O'Brien on the train.
- Garda Campbell asked Ms O'Brien if he could speak to her on the platform, as other passengers were within earshot
- On the platform Garda Campbell outlined the complaint to her and told her that he had been told that there were two independent witnesses to support the allegation
- Mrs O'Brien immediately denied the allegation
- Garda Campbell said that the allegation took her by surprise and that she was seriously embarrassed by it
- Mrs O'Brien said to him that she believed she was being victimised because she was a Traveller
- She told him she had never been in trouble before and that the Gardai in Killarney would confirm this
- He told her that she was not under arrest and that there was no obligation on her to let her belongings be searched
- Mrs O'Brien freely offered her handbag to be searched. Garda Campbell recalls her showing him a large handbag and not a black sack
- She opened her bag for Garda Campbell to search and he found nothing suspicious inside
- Garda Campbell again asked for the two witnesses but they were not produced.
- On foot of this, Garda Campbell told Mrs O'Brien that the Gardai would not be taking any further action and that she was free to get back on the train
- Garda Campbell said that he had no reason to be suspicious of Mrs O'Brien and that he had felt some sympathy for her because of the situation she had found herself in
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment she received on the Cork to Dublin train on Thursday 26 July 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case 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) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, 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.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents accept that an allegation of larceny was made against the complainant and that the Gardai were called to carry out a search of her belongings. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 26 July 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In this particular case, I have not been provided with any comparable situation where a non-Traveller was accused of larceny while a passenger on an Iarnrod Eireann service. I, therefore, find that I am unable to compare this case with another "real-life" situation which has occurred in the past. In order to properly evaluate the complainants' case, I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point. The Equal Status Act 2000 provides for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated.
7.5 Hypothetical comparators have been introduced in a number of other Equal Status cases in recent years where an actual comparator did not exist. For example, in the case of McDonagh v Tesco (DEC-S2001-016), the Equality Officer found that a member of the Traveller community, who was forcibly removed from a supermarket, was less favourably treated than a non-Traveller would have been treated in similar circumstances. Similarly, in the case of O'Brien v The Canada House (DEC-S2002-002/003), where two female members of the Traveller community were approached by staff on arrival in a shop, the Equality Officer found that a non-Traveller would not have received the same treatment.
A hypothetical comparator was also introduced in a recent case under the Employment Equality Act 1998. In Minaguchi v Wineport Lakeshore Restaurant (DEC-E2002-020) a trainee chef, who had been placed for work experience with a restaurant, was asked to work a trial period before taking up her placement. She argued that the difference in treatment was discriminatory based on her older age and marital and family status. In that case, the Equality Officer found that the appropriate comparator was a hypothetical student from the complainant's class who was of different age or of different marital or family status. The construction of a hypothetical comparator has also been a feature of recent UK equality caselaw. In Balamoody v UK Central Council for Nursing, 2002 IRLR 288 (Court of Appeal), the Court of Appeal found that the Employment Appeals Tribunal had erred in not having regard to any hypothetical comparator.
More recently, the House of Lords, in its decision in a race discrimination case, Shamoon v Chief Constable of RUC, ( 2003 UK HL 11 ), has stated the principle that it is correct and appropriate for a tribunal to construct a hypothetical comparator , where no actual comparator is available, in order to make the necessary comparison with someone in similar relevant circumstances.
Although the above UK precedents are not binding, I consider them persuasive as the wording of the relevant provisions in the Race Relations Act 1976 are extremely similar to the definition contained in Section 3(1)(a) of the Equal Status Act 2000.
7.6 As stated earlier, no reference has been made to previous situations where a non-Traveller has been accused of larceny on a train. I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point and ask the question as to whether the respondents would have adopted a different stance if the incident on 26 July 2001 had involved a non-Traveller woman with two children.
7.7 In considering the evidence before me, I note that there is some contradiction as to whether a full luggage bag was stolen or just some items from the luggage bag. On this point,
I note that both parties agree that a full luggage bag was reported missing and, therefore, I am prepared to accept that this was the case.
7.8 To me, the key pieces of evidence in this case are as follows:
- The Ticket Collector, Mr Nolan, says that he distinctly remembers noticing Mrs O'Brien and her children from the fact that her children were running around the train and that one of them was barefoot.
- Mr Nolan was prepared to accept the word of a passenger that Mrs O'Brien was the prime suspect on the basis that two other passengers had "surmised" that the two children had been involved
- Mr Nolan made no attempt to identify or interview the alleged witnesses himself before calling the Gardai
- Mr Nolan chose not to inform Mrs O'Brien that an allegation of theft had been made against her and her children
- Mr Nolan has stated that he knew that "the law was tricky" and that he asked the Gardai at Portlaoise to search the whole train. The Garda witness, however, states that it was the passenger and Mr Nolan that had actually persuaded him that Bridget O'Brien was the prime suspect and that it was Mr Nolan himself who led him to Ms O'Brien.
- Mr Nolan has admitted that he did not speak to Mrs O'Brien after the incident and has acknowledged that neither he nor anyone from CIE has ever apologised to her for the incident
- Mr Nolan never asked the passenger in question for his name during the course of the incident nor does it appear that Mr Nolan obtained Mrs O'Brien's name on the day in question
- Mr Nolan himself did not make a written report of the incident
7.9 On the basis of the above pieces of evidence, I simply cannot accept that Mr Nolan would have acted in a similar manner if a non-Traveller woman with two children had been accused of larceny.
I believe that, if a non-Traveller had been involved, it is reasonable to expect that the Ticket Collector would have at least asked to speak to the two witnesses who had been identified before agreeing to call the Gardai. Yet, despite the fact that the passenger had said that it was only "50/50" that Mrs O'Brien's children had been involved, Mr Nolan chose not to seek out the two witnesses to confirm their reports. More importantly, Mr Nolan chose not to inform Mrs O'Brien of the allegation against her, which I find hard to believe is standard practice, especially where an unfounded allegation has been made against a passenger.
I also cannot accept that Mr Nolan was following standard procedures in not speaking to Mrs O'Brien afterwards or offering her some form of apology. It also appears that Mrs O'Brien was never offered an apology from anyone in Iarnrod Eireann over the incident.
7.10 Mr Nolan has stated that he did not suspect that Mrs O'Brien was a member of the Traveller community until she made the point to the Garda in Portlaoise. I have serious difficulty in accepting this statement as I consider that it would have been obvious to Mr Nolan
(1) from talking with Mrs O'Brien about her son,
(2) from the fact that one of her children was barefoot, and
(3) from the fact that she had her luggage in a black sack,
that she was a member of the Traveller community. I also find it hard to believe that the family's suspected Traveller identity would not have been communicated to Mr Nolan by the passenger who made the accusation.
7.11 Having considered all the evidence before me, I have reached the conclusion that on 26 July 2001, Mr Nolan did recognise Mrs O'Brien as a Traveller and, in choosing to act on an unsubstantiated allegation against her, treated her less favourably than he would have treated a non-Traveller in similar circumstances.
I am, therefore satisfied that the actions of Mr Nolan on 26 July 2001 constituted discrimination on the Traveller community ground contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 In this particular situation, I consider that the complainant were clearly identifiable as a member of the Traveller community when she travelled on the Tralee to Dublin rail service on 26 July 2001 and that this led to her receiving less favourable treatment than a non-Traveller would have received in similar circumstances. I, therefore, find that a prima facie case of discrimination has been established and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainant was discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the respondents on the grounds of her membership of the Traveller community.
8.2 In considering the level of redress to award, I note that Iarnrod Eireann have since put in place staff training on the provisions of the Equal Status Act 2000 and have developed an awareness training program on cultural diversity for all front-line staff.
8.3 In the case before me, however, I consider that the complainant suffered serious distress and humiliation on 26 July 2001 and I order that the respondents pay Mrs O'Brien the sum of €2500 in compensation.
Brian O' Byrne
Equality Officer
7 May 2003