Ms. T. O’Brien on behalf of Ms. K. Quilligan V Daly’s Supermarket, Killarney (Represented by P.J. O’Connell Solicitors)
Ms. O’Brien referred a claim on behalf of Ms. Quilligan (who was under 18 at the time of the incident) 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 case 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.
Summary of the Complainant’s case
On 29/1/2002 the complainant, then attending Primary School, entered the respondent’s premises to get her lunch on her way to school. She was approached by a man who told her to get out as she was barred and that her kind of people were not allowed in the shop. She was embarrassed as some other students from school, non-Travellers, were present and being served. The complainant accepted that she had previously been told she was barred although she did not know why. She went into the shop under the direction of her guardians. Ms. O’Brien stated that, because a lifelong bar had been imposed on Ms. Quilligan, something had been taken away from her.
Summary of the Respondent’s Case
The Duty Manager approached the complainant and asked her to leave, pointing out that she had previously been told she was barred. She left and a gentleman came in and asked what had happened. He was also told that the complainant was barred. He said that the shop would be hearing more about this and took the manager’s name and position. The complainant is barred for allegedly causing difficulties at the checkout and being a ‘general nuisance’. No comment referring to “your kind” was made to the complainant.
Conclusions of the Equality Officer
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 the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and 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 ground. Instead the respondent has to prove that there is not.
I am satisfied that the complainant is a member of the Traveller community and both parties agree that there was a refusal of service. This satisfies (a) and (b) above.
The complainant was barred and was refused service. Although other non-Traveller students were served at the time of the incident, they were not barred. A superficial look at how a non-Traveller would have been treated in similar circumstances suggests that a non-Traveller would also not have been served if barred. However, since it is the barring itself that was the cause of service being refused it requires examination. The respondent could not identify a specific reason why the complainant was barred. They could not indicate why or when this was imposed. There was mention of an incident at the till but they were unable to say specifically what happened or to produce a witness. They could not indicate whether the complainant was alone or with a group during the alleged till incident, or if in a group whether the alleged inappropriate behaviour was displayed by the complainant or other members of the group. They also mentioned that the complainant was part of a group outside the shop on occasion. The complainant explained this by saying that she had to wait while her friends went into the shop but she added that the group did not behave inappropriately. The respondent also indicated that not all members of the group are barred. I am satisfied that the respondent has failed to support the barring of the complainant in any substantial way and this is further underlined by the complainant’s lack of understanding as to why she is barred. Therefore the respondent has retained the ongoing barring of the complainant without specific justification.
In the absence of such justification from the respondent for barring the complainant and since the only difference between the complainant and the other students served at the time of the incident was her membership of the Traveller community, I am satisfied that an inference of discrimination arises on the Traveller ground. Therefore I find that the complainant has established a prima facie case of discrimination on the Traveller ground.
The respondent has failed to produce evidence that might show that barring the complainant was reasonable or any other evidence that might rebut the prima facie case of discrimination.
I find that the ongoing barring of the complainant was less favourable treatment of the complainant by the respondent on the Traveller ground. This less favourable treatment led ultimately to the refusal of service on 29/1/2002.
Decision DEC-S2005-098
I find that the respondent discriminated against the complainant on the Traveller ground by imposing a lifelong bar on her entering their premises without adequate justification and when they refused her service in their premises.
In accordance with Section 27 I hereby order that the respondent:
Ø Pay the complainant €1000 for the effects of the discrimination, and
Ø Ensure that the complainant is served in future, within the requirements of legislation, and
Ø Review all other cases of barred individuals to ensure their compliance with the Equal Status Acts.
Bernadette Treanor
Equality Officer