Vera O'Brien V Daly's Supermarket, Killarney (represented by Padraig J. O’Connell, Solicitors)
1. Dispute
This dispute concerns a complaint by Vera O'Brien that she was discriminated against, contrary to the Equal Status Act 2000, by Daly's Supermarket in being asked to leave on 7 February 2002.
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
This dispute concerns a complaint by Vera O'Brien that she entered Daly's Supermarket's shop on 7 February 2002 to purchase goods but was refused service by the manager, John Daly, and told that she was barred.
3. Summary of Respondent's Case
The respondent totally rejects that he operates a discriminatory policy against Travellers. He said that she was asked to leave because of her abusive and threatening behaviour towards staff previously
4 Delegation under the Equal Status Act, 2000
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.
Complainant’s Evidence
Ms O'Brien, who is now 21 years old, has lived all her life in Killarney and visited Daly’s Supermarket (formerly Mace) on a daily basis since her childhood.
The staff knew her to see and she never had any trouble getting served prior to 7 February 2002.
On 7 February 2002, she went in to the shop to buy goods and was approached by Mr John Daly who told her she was barred. Mr Daly referred to her by her first name.
When she asked why, he told her it was because she had previously attacked a member of staff with a lucozade bottle. She said that she was shocked to hear this allegation and denied that it had ever happened.
She did not visit the shop for some time thereafter. When she tried again in 2004, John Daly called the Gardai and she was informed that she was still barred because of the previous “attack”.
No other members of her family are now served in Daly’s Supermarket.
Respondent’s Evidence
Mr John Daly said that his family have run the shop for many years.
He knew the O’Brien family for a long time and was aware that they were Travellers.
Vera O’Brien was a regular customer in the shop over the years.
Mr Daly stated that the reason Ms O’Brien was barred on 7 February 2002 was related to two previous incidents.
When barring Ms O’Brien on 7 February 2002, he said that he referred her to the more recent incident which allegedly occurred on 25 November 2001.
At the Hearing on 18 May 2005, Mr Daly produced two written reports from the two female staff members on duty on 25 November 2001.
The first report, from the woman who refused to serve her, states that Ms O’Brien called her names and threw a lucozade bottle at her. The second report, from the other staff member recalls Ms O’Brien calling the first woman a “slut”.
On the basis of the reports from his staff, Mr O’Brien says that he informed Ms O’Brien on 30 November 2002, the next time he saw her in the shop, that she was barred because of the incident on 25 November. She denied to him at that time that the incident had occurred and left the shop having given him some verbal abuse.
Mr Daly said that the refusal on 25 November 2001 arose from a previous incident some months earlier when Ms O’Brien had allegedly verbally abused one of the female staff members.
Mr Daly said that he could not identify the exact date of the earlier incident nor was he able to produce any written reports from staff relating to that incident.
Mr Daly said that both women were no longer working for him and were not available to attend the Hearing. On this point, the respondent’s representative said that she herself had managed to speak to one of the women the day before the Hearing who recounted for her the details of the lucozade bottle incident. The woman also told the representative about the original incident in 2001 when she got very upset after being verbally abused by the complainant.
Mr Daly said that he was normally on the shop floor himself 90% of the time but was not present for the two 2001 incidents.
Mr Daly said that it was his policy to bar for life those who abused, threatened or assaulted staff. He believed that this policy was in the best interests of staff and would serve to protect them from future assaults. This policy is applied to everyone regardless of their background.
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 Daly's Supermarket.
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 7 February 2002. 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 O'Brien was refused service. What is in dispute is why Ms O'Brien was refused service. She maintains that it was because of her Traveller identity while Mr Daly maintains that it was because she had been abusive to staff previously in the shop.
For her part, Ms O’Brien denies that she was ever involved in any incident in the shop prior to 7 February 2002. In contrast, I have been presented with incident reports dated 25 November 2001 from two female staff members indicating that Ms O’Brien engaged in violent and abusive behaviour towards them on being told that she was not being served on account of a previous incident.
Mr Daly has also provided evidence at the Hearing that he personally spoke to both members of staff shortly after 25 November 2001 and, on the basis of these conversations, satisfied himself that Ms O’Brien had engaged in unacceptable behaviour. As a result, he made a decision that the complainant was permanently barred from the shop from that date.
In considering the evidence provided in relation to the 25 November 2001 incident, I find that I am prepared to accept, on the balance of probabilities, that an incident did occur in the shop involving Vera O’Brien which resulted in her being barred subsequently by John Daly. What is unclear, however, are the circumstances which led to her being refused service in the first place on 25 November. The respondents maintain that she was refused because of a previous incident in the shop but any such incident is denied by Ms O’Brien.
Of importance here is that I have not been provided with any first hand evidence whatsoever with regard to the original incident referred to by Mr Daly in which Ms O’Brien was allegedly involved and which resulted in her being refused service on 25 November. Mr Daly says that he barred Ms O’Brien on 7 February 2002 because of the 25 November 2001 incident and that the 25 November 2001 barring arose from a previous incident involving Ms O’Brien. Yet, the respondent is unable to provide me with any information as to why the original barring occurred. All that I have been told is that the complainant allegedly became abusive to one of the female staff members on a date unknown but no other information has been proffered as to what started that alleged altercation.
In my opinion, this information is essential to the whole case as, if the original incident as alleged had not occurred, there is every reason to believe that Ms O’Brien would still be a regular respected customer of Daly’s Supermarket.
In the absence of any substantial evidence relating to the original incident, I find that the respondents have not satisfied me that they had a justifiable reason for refusing service to the complainant on 25 November. For this reason, I am prepared to accept, on the balance of probabilities, that the complainant’s membership of the Traveller community was a motivating factor in the decision to refuse her service on 25 November 2001 and, because of the linkage between the two incidents, that it was also a contributing factor to the barring on 7 February 2002. Accordingly, I consider that the complainant was treated less favourably than a non-Traveller would have been treated in similar circumstances.
7.4 I find that Ms O’Brien has established a prima case of discrimination on the Traveller community ground and, in the absence of any hard evidence in relation to the alleged original incident, I find that the respondents have failed to rebut the allegation.
Decision
8.1 I find that a prima facie case of discrimination has 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 and that the respondent has failed to rebut the allegation.
8.2 As stated earlier, I am prepared to accept, on the balance of probabilities, that an altercation involving the complainant did occur on 25 November 2001 and that the complainant did engage in behaviour of an unacceptable nature towards staff on that date.
While the complainant may have felt justified in engaging in such behaviour (if, as she says, she had not caused trouble before), the bottom line is that behaviour of a violent or threatening nature cannot be condoned, even where a person feels that discrimination has occurred. For this reason, I do not consider that monetary compensation is appropriate in this case.
The aspect of this case that I do consider inappropriate is the fact that the complainant has been barred permanently from the supermarket on the basis of the above incident and another unsubstantiated incident and I feel that this is unfair to the complainant.
I, therefore, order that any ban currently in force against the complainant and her immediate family be lifted immediately and that, from now on, the complainant and her family are allowed into the shop and provided with service on the same basis as any non-Traveller would be treated in similar circumstances.
Brian O'Byrne
Equality Officer
17 August 2005