Ann Maughan, G. Maughan (a minor), Ann McDonagh, K. McDonagh (a minor), and T. McDonagh (a minor) (Represented by OReilly Doherty & Co.) V Tesco (Represented by Sasha Gayer, BL, on instruction from O’Rourke Reid Solicitors)
Ann Maughan and Ann McDonagh referred claims on their own behalf and on behalf of their children G. Maughan, K. McDonagh and T. McDonagh 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.
Summary of the Complainant’s case
The complainants stated that they entered Tesco Supermarket in the Omni Shopping Centre in Dublin on 29/8/2002. They stopped at the trolley of reduced items and while they were moving on they were approached by a security man who refused to allow them to continue shopping. They alleged that he was overly aggressive and rude. The Gardai were called at the complainants’ request and after speaking to the Gardai the complainants left. They stated that the only reason the security man approached them is their membership of the Traveller Community. It is alleged that one possible reason that video evidence has not been produced is because it would show the inappropriate behavior of the security man.
Summary of the Respondent’s Case
The respondent stated that the complainants were observed opening goods that had been in the trolley of reduced items in a manner that rendered them unfit for sale. Since these items were then damaged stock, and since the complainants had replaced them in the trolley, the complainants were approached and asked if they intended to pay for the goods. When the complainants refused they were told that their invitation to shop had been withdrawn and they were asked to leave. The complainants argued that they should not have to leave, although the security man continued to shepherd them towards the exit. The Gardai were called and they spoke to both parties when they arrived. The complainants subsequently left. This incident arose only because stock was being damaged and the respondent stated that such approaches would be normally be made in such circumstances. The complainants’ membership of the Traveller community was not the reason that action was taken in this case. Although the complainants came to the security man’s attention initially while he was viewing cctv security screens, no video evidence was available.
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 complainants. 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 complainants have 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 membership of the ground. Instead the respondent has to prove that there is not.
I am satisfied that the complainants are members of the Traveller community and this was not disputed by the respondent. It is agreed by both parties that the invitation to shop in the store was withdrawn. These points satisfy (a) and (b) above.
The complainants stated that they had shopped there before without any difficulties on a number of occasions, that they did not damage stock and are not aware of any reason why the security man would have to approach them. This indicates, they allege, that he approached them only because they are members of the Traveller community. They have not produced evidence that would support this or that would suggest a bias on the part of the security man against Travellers.
The respondent, on the other hand, has submitted a reason for approaching the complainants. It is alleged that the complainants were observed opening goods in the reduced items trolley and rendering these goods useless for sale. The security man approached the complainants allegedly to ascertain whether or not they intended to purchase the items or pay for the items opened.
I find the respondent’s version of events more compelling and accept that he approached the complainants with a view to addressing the issue of payment for any goods opened.
Allegations were made of unacceptable comments and behaviour from both parties after the initial approach was made, and I accept that that may well have been the case. However, this happened after the initial discussion as to the opening of goods which led to the withdrawal of the invitation to shop.
The question to be addressed is: would the security man approach a non-Traveller he suspected of damaging goods and returning them where he also suspected the goods would not be paid for? I am satisfied that he would. In my view the complainants have not shown that the security man treated them less favourably than a non-Traveller would have been treated by him in similar circumstances.
I find therefore that the complainants have failed to establish a prima facie case of discrimination on the Traveller ground.
Decision DEC-S2005-099-103
I find that the respondent did not discriminate against the complainants when the invitation to shop was withdrawn on 29/8/2002.
Bernadette Treanor
Equality Officer