Maria O'Shea V Hennessy Salon Supplies Ltd., Cork
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Age ground, Section 3(2 (f) - Victimisation ground, Section 3(2)(j) (iv) - Harassment, Section 11(5) - Disposal of goods and supply of services, Section 5(1) - Refusal of service - Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by Maria O'Shea that she was refused service, on the grounds of her age, on a number of occasions by the respondent, the last such incident having occurred on 27 June 2002. The complainant states that she was harassed, victimised and treated in a discriminatory manner by the respondent in the course of these refusals. The complainant 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 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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. Complainants' Case
2.1 The complainant, who is over sixty years, stated in written submissions that she sought and was refused service in the respondent's premises on a number of occasions, the last such incident having occurred on 27 June 2002. In the course of these incidents the complainant states that the respondent had followed her around in the premises and made disparaging remarks to the effect that the items she wished to purchase were for young people and not for her. The complainant returned to the premises seeking service on 27 June, 2002. She chose an item and went to the cash desk pay for it. The respondent refused to serve her and instructed his staff not to serve her. The respondent snatched the item from the complainant and threw it back on the shelf. The complainant picked the item up again and sought to purchase it and was again refused service by the respondent and was told to leave the premises. The complainant refused to leave and when she remained on the premises on 27 June 2002 and again requested service, the respondent called the Gardaí and had the complainant removed from the premises on the basis that she was being disruptive and causing upset, all of which is denied by the complainant. The complainant states that, in the course of his telephone call to the Gardaí, the respondent described the complainant as "an auld one" who was causing a disturbance in the premises.
3. Respondent's Case
3.1 The respondent did not reply to the statutory notification in this matter and the only written material submitted by him stated that the respondent premises consist of a trade section and a section for the public and that the reason respondent would not serve the complainant on 27 June 2002 was because he was aware that the complainant is not a hairdresser. On the date in question the complainant refused to leave the premises and the respondent then called the Gardaí. The latter asked on the phone whether the person in question was young or old and the respondent replied that she was old.
4 Outcome of Hearing
4.1 At the scheduled Hearing of this complaint the complainant was asked to outline her complaint. The complainant stated that, for the purpose of the Hearing, she would be referring back to, and relying on her written submissions in the matter. She began to read from her written submissions, outlining events in the course of visits to the respondent premises prior to the final date of alleged discrimination, i.e. 27 June, 2002.
4.2 The representative for the respondent interrupted proceedings and requested that all information supplied by the complainant which did not refer directly to the specific incident of discrimination alleged to have occurred on 27 June 2002 be ruled inadmissible. In the event that this information was not ruled inadmissible the representative stated that he would withdraw from the Hearing.
4.3 In Kiely v The Minister for Social Welfare (No. 2) [1977] I.R. 276 at 281 Henchy J.stated that "Tribunals exercising quasi judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing or a fair result" In Goodman v Hamilton [1992] 2 IR 542: Costello J. stated at page 565: "There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures ............"
4.4 It was clarified to the respondent's representative that the information provided by the complainant was being allowed as it might assist in clarifying the nature of the ongoing relationship between the parties leading up to the final incident complained of. This is particularly relevant in relation to a complaint of victimisation. The relevance and the weight which would be afforded this information was something that required further consideration by the Equality Officer in the course of arriving at a final Decision in this case and that it was of course open to the respondent to respond to the information provided by thecomplainant, in accordance with fair procedures and natural justice.
4.5 The representative for the respondent stated that he did not accept this position and withdrew himself and the respondent from the Hearing. The Equality Officer informed him that if he wished to do so she would be obliged to issue a Decision based on the evidence available.
5 Prima Facie Case
5.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. In other words, has the complainant established the primary facts from which it can be inferred that discrimination, harassment or victimisation has occurred?
5.2 In considering what constitutes a prima facie case, I have examined definitions from various sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred."1
5.3 If and when a prima facie case is 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainant
6.1 On 27 June 2002 the complainant entered the respondent premises, a hairdressing salon supply shop, and sought to make a purchase. It is common case that she was refused service on this occasion. The complainant states that she was refused on the basis of her age. 1 See Southern Health Board v Mitchell, Labour Court, AEE/99/8, Dooley & Ors v The Cutting Crew, DECS2002- 023-025, Ross v Royal and Sun Alliance - DEC-S2003-116 The respondent states that the refusal of service was because he recognised that thecomplainant is not a hairdresser. The respondent also states in written evidence that a section of his premises is for sale of items to the general public.
6.2 The respondent does not indicate that the complainant was seeking to purchase items other than those that were for sale to the public. He simply states that he refused service because he recognised that she was not a hairdresser. The respondent gives no indication as to how he was aware that the complainant was not a hairdresser, or why this is relevant in the matter at hand.
6.3 In the course of speaking to the Gardaí on the phone the respondent states that he was asked whether the complainant was young or old and he replied that she was old. The complainant states that the respondent stated that "an auld wan" was causing a disturbance in the premises when he was speaking with the Gardaí.
6.4 The complainant has indicated in her complaint and written submission that the respondent had previously refused her service and had made a number of references to items being unsuitable for her because of her age. The complainant further states that he had followed her around in his premises making derogatory remarks about her age. On 27 June 2002 the complainant was refused service in circumstances which I am satisfied, having regard to the complainant's submissions about earlier references to her age by the respondent and the absence of any evidence from the respondent for the refusal of service, related to the respondent's earlier treatment and refusals of service to the complainant on the ground of age.
6.5 Prima Facie case - Discrimination
Having considered all of the evidence provided in this matter I am satisfied, on the balance of probabilities, and in the absence of any credible, contradictory evidence from the respondent, that an inference of discrimination on the age ground arises in relation to the refusal of service to the on 27 June 2002.
6.6 Prima Facie Case - Harassment
Having considered all of the evidence provided in this matter I am satisfied, on the balance of probabilities, and in the absence of any credible, contradictory evidence from the respondent, that an inference of harassment of the complainant by the respondent arises in relation to the refusal of service on 27 June 2002 in that the respondent is stated to have followed the complainant in the premises and made disparaging remarks about the suitability of items for her because of her age, specifically referring to her as "an aul wan". The respondent is also stated to have prevented his staff from serving the complainant. All of the foregoing, I am satisfied, constitute harassment of the complainant by the respondent in terms of Section 11 (5) of the Equal Status Act 2000.
6.7 Prima Facie Case - Victimisation
See Para. 9 below.
7 Respondent's Rebuttal
As the respondent withdrew from the Hearing in this matter he elected not to provide any evidence which might rebut the inference of discrimination and harassment.
8 Decision - Discrimination & Harassment
8.1 Discrimination
I find that the complainant was discriminated against on 27 June 2002 on the Age ground contrary to Section 3(1)(a), and 3(2)(f) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
8.2 Harassment
I find that the complainant was harassed on 27 June 2002 on the Age ground contrary to Section 11(5) of the Equal Status Act 2000.
9 Victimisation
9.1 Prima Facie Case - Victimisation
In light of the complainant's stated references by the respondent to the complainant's age in the course of previous refusals in the respondent premises I am satisfied that her attendance at the respondent premises to purchase goods on 27 June 2002, constitutes, in its own right, her opposing by lawful means an act which is unlawful under the Equal Status Act 2000 in terms of Section 3 (2) (j)(iv) of the Equal Status Act 2000, i.e. based on the only evidence available to me I am satisfied that the manner in which the complainant was treated on previous visits to the respondent premises constitutes prohibited conduct under the Equal Status Act 2000 The complainant's return to the premises to seek service on 27 June, 2002 is, I am satisfied, a lawful act on her part designed to oppose the earlier unfavourable treatment by the respondent.
9.2 Notwithstanding my conclusions at 9.1 above, I have been satisfied that the refusal of service was discriminatory and that the respondent harassed the complainant in the course of her visit to his premises on 27 June, 2002, (see para. 8 above) both of which are unlawful under the Equal Status Act 2000. I am satisfied that an inference of victimisation (in accordance with Section 3(2) (j)(iv) of the Equal Status Act 2000) arises therefore in relation to the manner in which the complainant was treated when she stood her ground following the refusal of service and harassment i.e. the respondent had her forcibly removed from his premises.
10 Respondent's Rebuttal - Victimisation
As the respondent withdrew from the Hearing in this matter he elected not to provide any
evidence which might rebut the inference of victimisation.
11 Decision - Victimisation
I find that the complainant was victimised by the respondent on 27 June 2002, contrary to
Sections 5(1) and 3(2) (j) (iv) of the Equal Status Act 2000.
12 Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where afinding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified." I hereby order that the respondent pay compensation to the complainant in the amount of €1000 for the effects of the discrimination, harassment and victimisation on his part.
____________________________
Dolores Kavanagh
Equality Officer
6 August, 2004