Barry Ukandu V BurgerKing (Represented by John J Murphy and Co. Solicitors)
File Ref: ES/2002/0912
Equal Status Acts 2000-2004
Summary of Decision DEC-S2005-199
Barry Ukandu -v-Burgerking (Represented by John J Murphy and Co Solicitors)
Keywords
Equal Status Act, 2000 - Race Ground Section 3 (2) (h) - Establishment of a Prima Facie case- Access to sanitary facilities in restaurant
Dispute
This dispute concerns a complaint by Mr. Barry Ukandu that he was discriminated against contrary to Section 3 (1) and Section 3 (2) (h) of the Equal Status Act 2000 when he sought to use the customer toilets in Burgerking, O'Connell Street, Dublin in July2002.
Background
While in Burgerking with some friends, the complainant sought to access the toilets in the restaurant but was told they were busy. His friends told him that they saw others gaining access so he again attempted to use the facilities and confronted the security man on duty. An altercation took place and the Gardai were called. The complainant believed the refusal of access was discriminatory because of his race.
The respondent said that the toilets were closed to allow rubbish removal when the complainant sought access and that nobody could enter as a shutter was in place at the stairwell leading to the toilets area. The respondent said the complainant raised this shutter and forced his way towards the toilets and was aggressive towards the security man. The said the complainant had been removed by the Gardai and charged as a result of the incident.
Conclusions of the Equality Officer
The Equality Officer found that the complainant did not succeed in establishing a prima facie case of discrimination on the Race ground and that the respondent would have applied the same treatment to any customer in similar circumstances.
Equal Status Acts 2000-2004
Decision DEC-S2005-199
Barry Ukandu -v-Burgerking (Represented by John D Murphy and Co Solicitors)
Delegation under the Equal Status Act 2000-2004
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 this complaint to me Mary O'Callaghan, 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. The hearing of the case took place in Dublin on Tuesday 8th November 2005.
1. Summary of the Complainant's case
1.1 The complainant, who is African, said that on13th July 2002 he, together with some acquaintances went to Burgerking in O'Connell Street Dublin. He said that one of his friends purchased food for the group to the value of €13 and the group sat in the restaurant consuming their purchase. While on the premises the complainant said he sought to use the toilets but was refused access by the security man who said the toilets were busy. His friends had told him they saw other customers approaching the toilets and going in. He said he again approached the toilets, and confronted the security man who was on duty near the toilets. He said he was told that if he asked the manager's permission to use the toilets and this was allowed he would be allowed in.
1.2 The complainant said he interpreted the refusal of access to the sanitary services of the restaurant as a discriminatory act on the ground of his race. Such actions are contrary to Section 3 (2) (h) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. He said he believed Irish people would not have been asked to seek management permission to use the toilet. An altercation occurred between the complainant and the security man as the complainant attempted to access the restaurant toilet. The complainant said that he sought the assistance of the Garda Siochana and that they arrived after about 5 minutes and he explained his predicament to them. The outcome of this was that the Gardai after speaking to him and the staff of the restaurant and viewing the CCTV record of the incident removed him from the premises and took him to the Garda Station nearby.
1.3 A friend of Mr. Ukandu's, Mr. Richard Njoku, who attended the hearing said he had been with the complainant some months later when they came across the security man in the Moore Street area and Mr. Njoku confronted him to find out why Mr. Ukandu had been treated in the manner he was. He said that the security man had told him he was doing what he was instructed to do by the manager at Burgerking.
2. Summary of the Respondent's case
2.1 Mr. Robert Davis the manager of the restaurant said that the complainant was not a customer of the restaurant at the time of this incident and had merely walked in off the street and went towards the toilets which had just closed for cleaning, a closure which occurred at the same time every day to enable rubbish to be removed on time for the refuse collection by Dublin City Council. As the floors were likely to get wet and soiled during the rubbish removal process the respondent said the closure was necessary for safety reasons. For a few minutes after the closure the shutters at the toilet access remained partly open while patrons already in the toilets exited but no one gained access. The shutter was completely closed once the toilets were empty. Mr. Davis said that normal practice during this period would be to offer customers seeking to use the toilet the use of the facilities in La Pizza their sister restaurant next door.
2.2 It was while the shutters were partly closed that Mr. Ukandu approached the toilet area. The evidence of the restaurant manager and the security staff member Mr. Mohammed Aurfan who dealt with Mr. Ukandu was that people were exiting the toilets at this time but no one entered. Mr. Ukandu was told that the toilets were busy and he walked away. A few moments later he returned and approached the security man and again sought access to the toilet area. He was told the toilets were closed for cleaning but he persisted in his attempts to access the toilets.
2.3 Mr. Aurfan said he told the complainant that if the manager would let him down to the toilet area he could go. He said that the complainant became extremely irate and pushed him against the wall making a derogatory a comment about the security man's Pakistani origin. He said that Mr. Ukandu then went to the shutters which were at that time completely closed, lifted them and proceeded down the stairwell towards the toilets pursued by Mr. Aurfan who passed him and succeeded in closing the door to the toilet area at the end of the stairs. The security man said it was he and the manager who decided to call the Gardai, who arrived some minutes later and spoke to the parties and viewed the CCTV footage of the incident. The complainant was then arrested and was subsequently charged in the District court on foot of the incident. The evidence was that no other person was charged in relation to the incident. Ms Lisa O'Neill the assistant manager, who said she was behind the counter of the restaurant for most of the time during the incident, gave evidence supporting that of the security man.
2.4 The respondent also submitted that the security man was not a direct employee of Burgerking but rather worked for a security company which supplied security to a number of similar restaurants in the area as well as Burgerking. It was also submitted that as the complainant had the Probation Act applied when he appeared in court on a Public Order charge arising from the incident, the matter was res judicata, since in his complaint to the Tribunal the complainant had said that the discrimination had arisen when he was forcibly prevented from using the toilets. The respondent submitted that if force had been used, it was used by the complainant.
3. CCTV
3.1 CCTV footage without sound was provided to the Tribunal by the Respondent and was viewed by all parties at the hearing. It is not clear from this whether Mr. Ukandu and his friends were actually consuming food in the restaurant at the time as only limited footage of the seating area was available. However, for the purposes of this investigation I consider that this is not of great importance as I consider it would not be unusual for both customers and passers by to use the toilet facilities of a restaurant such as this on O'Connell Street. The respondent said that although there was a sign indicating that toilets were for customer's use only, on occasions people did come in from the street outside, solely to use the toilet facilities.
3.2 The footage showed the shutters already partially lowered on the access to the toilets area when the complainant approached initially. It shows a brief encounter with the security man and the complainant walking away. The shutter is next seen to be completely shut when the complainant returns to the toilets area. During this time no customer is entering the stairwell although a small number are seen to come up from the stairwell into the restaurant. An animated discussion is observed between the complainant and the security man, which then progresses to situation where the complainant is seen holding the security man against the wall and then raising the shutter and attempting to go down the stairs towards the toilets followed by the security man. Shadowy images of what is happening in the stairwell are seen with the two men emerging when the Gardai arrive some minutes later. As one Garda speaks with the complainant the other is seen to walk away with the manager, apparently to view the CCTV material in the office. The complainant is then seen to go away with the Gardai.
4. Conclusions and Decision of the Equality Officer
4.1 I must assess whether the complainant has succeeded in establishing a prima facie case of discrimination. In order to do so he must satisfy three criteria in relation to his complaint. He must (1) establish that he is covered by the discriminatory grounds (in this case the race ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favorable than the treatment someone who was of a different race would have received in similar circumstances. I am satisfied that the complainant has satisfied the first and second of these criteria in that he is covered by the race ground due to his African origin and that he was refused access to the toilets in Burgerking on 13th July 2002.
4.2 Before addressing the third of the criteria, in addressing the legal points made by the respondent, I am satisfied that the security man was, at the time he encountered the complainant in Burgerking, an agent of Burgerking and any actions he may have taken in relation to the complainant are covered by Section 42 of the Equal Status Act with regard to vicarious liability. I am further satisfied that the matter of discrimination whether "forcible", as alleged by the complainant, or otherwise is not res judicata and the Tribunal's reasoning on this issue has been set out already in the earlier decision of A Complainant v An Garda Siochana (DEC-S2005-37P).
4.3 With regard to the third of the criteria outlined above, i.e., the criterion of less favorable treatment, I have not been provided with evidence of substance, apart from the complainants stated belief, that customers of other races were being provided with access to the toilets while he was not and his belief that the reason he was asked by the security man to consult with the restaurant manager in order to get permission to use the toilets while they were closed was because he was, in his own words, a black man. Mr. Njoku's evidence that he was told by the security man subsequently, that he was acting on the instruction of the restaurant management, adds nothing to the case as he was unable, when queried, to elaborate on what those instructions were. I therefore, conclude that the third criterion has not been met by the complainant and he has not established a prima facie case of discrimination on the race ground. The complaint is not upheld (DEC-S2005-199).
Mary O'Callaghan
Equality officer
19th December 2005