Rosie Burke (Represented by the Waterford Traveller CDP) V Donal Jacob, Waterford
1. Dispute
1.1 This dispute concerns a complaint by Rosie Burke that she was discriminated against, contrary to the Equal Status Act 2000, by Mr Donal Jacob in being refused service in his newsagents shop in Waterford on 19 September 2001.
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 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Rosie Burke that she entered Donal Jacob's shop on 19 September 2001 to purchase goods but was asked to leave with no reason given.
3. Summary of Respondent's Case
3.1 The respondent totally rejects that he operates a discriminatory policy against Travellers. He said that she was asked to leave because of a suspected involvement in a previous incident of larceny from the shop.
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.
Evidence of Complainant
Ms Burke had being living about a mile away from Donal Jacob’s shop for 7 years prior to the incident on 19 September 2001.
She would normally walk past his shop most days on her way to the local credit union.
On a few occasions she had stopped at the shop and bought cigarettes or sweets for her children
She had never before had any trouble getting served and had last been in the shop approximately 3 weeks before the refusal on 19 September 2001
She knew Mr Jacob to see from visiting the shop but preferred to be served by the female shopkeeper
On previous occasions, she would have been on her own
On 19 September 2001, she met another local woman while walking to the Credit Union. She did not know the woman’s name or whether she was a Traveller. However, they engaged in conversation as they walked.
When they came towards Jacob’s shop, Ms Burke decided that she would buy herself a soft drink. The other woman entered the shop with her.
When Ms Burke made for the fridge cabinet, Mr Jacob said “What do you want?”. She said a drink and showed him the money which she had in her hand.
At that point, he said “Get out - you’re barred” . He gave no further explanation
When she refused to leave, he said “Get out or I’ll hit you”. He then said that he would phone the Gardai and went to the phone behind the counter.
She decided that she would wait for the Gardai. She thinks the other woman left at that point but can’t recall exactly.
When the Gardai failed to arrive, she decided that she would have to leave as the Credit Union would be closing soon.
She did not call back to the shop afterwards that day
Ms Burke avoided going into the shop for some time but has more recently visited the shop when Mr Jacob was not present and bought goods
Respondent’s Evidence
At the Hearing on 9 March 2005, Mr Donal Jacob said that he remembered Ms Burke’s face from visiting his shop previously but could not recall whether he had personally served her before in the shop
He said that at the time he probably suspected that she was a settled Traveller. However, this made no difference to his attitude towards her as he had many Traveller customers
When Ms Burke and the other woman arrived on 19 September 2001, he said that he was pretty sure that they were two of four women who had stolen soft drinks from the drinks cabinet some weeks earlier
On that occasion, he said that his wife, who was serving behind the counter, noticed four women giggling at the minerals fridge. They then left the shop without purchasing any goods.
When his wife reported to him that she suspected that they had taken drinks without paying, he himself went outside the shop and looked after them. He noticed that they were looking back over their shoulders towards the shop.
At that point, he decided to follow them on his bicycle to see if there was any evidence of larceny
When he came up beside them, he saw a number of them drinking from Fanta bottles. The four women were unfamiliar to him
He decided that it was too late to approach them at that point but instead made a mental decision to refuse them service if they ever came to the shop again
When Ms Burke and the other woman arrived, he said that they reminded him of two of the four women and he told them that he was not serving them. He did not refer to the previous incident.
He remembers one of the women starting to argue and refusing to leave and that he got very annoyed at the time.
He then phoned the Gardai but could not get through the first time. He did manage to get through afterwards and he says that the Gardai can verify that they recorded his call at 4.07 pm on 19 Sept 2001
Mr Jacob said that he has never treated members of the Traveller community less favourably than others and states that he has regularly collected door-to-door for local disadvantaged organisations such as St Brigids
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 in being refused service in Donal Jacob’s shop.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, 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.
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) Existence of a discriminatory ground (e.g. the Traveller community ground)
(b) Establishment of facts to show that specific treatment occurred
(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.
7.2 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondent acknowledges that the complainant was refused service on 19 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.3 There is no dispute in this case over the fact that Ms Burke was refused service. What is in dispute is why Ms Burke was refused service. She maintains that it was because of her Traveller identity while Mr Jacob maintains that it was because he thought he recognised her and the woman with her as part of a group of women who had stolen goods from his shop some weeks previously.
From listening to Mr Jacob’s account of the alleged incident involving the four women, I am prepared to accept that the incident did occur as he has outlined. From listening to Ms Burke’s testimony, I am also prepared to accept that she herself was not one of the four women involved in the previous incident. However, there is no evidence before me to suggest one way or the other whether the woman with Ms Burke on 19 September 2001 was a party to the previous incident. Ms Burke herself has admitted that the woman was only a casual acquaintance and that she did not know her by name and, therefore, there is a possibility that, unknown to Ms Burke, that woman may have been involved in the previous incident. The fact that the woman appears to have left the shop quickly on 19 September 2001 could also be an indication of involvement in previous wrongdoing.
7.4 Having deliberated on the totality of the evidence before me, I am prepared to accept that Mr Jacob was acting in good faith when he refused to serve the two women on 19 September 2001. I consider that he had a genuine belief that one or both of the women had stolen goods from his shop previously and that this was the reason for the refusal rather than the fact that he recognised Ms Burke as a Traveller. While the other woman may have been involved in the larceny previously, I do not consider that Ms Burke herself was and I have formed the opinion that it was a genuine case of mistaken identity on Mr Jacob’s part in associating her with the previous incident.
In this regard, I note that Ms Burke has since been served in Mr Jacob’s shop and I trust that this will continue and that the fact that Ms Burke has brought this complaint will not have any negative repercussions for her in the future in the manner in which she is treated by the respondent.
7.5 On the basis of the above, I am satisfied that the decision to refuse service to Rosie Burke was not taken for discriminatory reasons. I, therefore, find that a prima facie case of discrimination on the Traveller community ground has not been established.
Decision
8.1 I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000.
Accordingly, I find in favour of the respondent.
Brian O'Byrne
Equality Officer
15 April 2005