Two Complainants -v- The Proprietor, Takeaway Premises, Dublin
Headnotes
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) – Discriminatory treatment – Prima facie case.
1. Dispute
1.1 This dispute concerns claims by each of two complainants that they were treated in a discriminatory manner by the respondent, contrary to the Equal Status Act, 2000, on the grounds that they are members of the Traveller community.
The complainants each referred a claim 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 then delegated the case to me, Dolores Kavanagh, 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.
2 Summary of Complainant’s Case.
2.1 Complainant A – M.D.
The complainant M. D. states that he was treated in a discriminatory manner on the basis of his membership of the Traveller community when the respondent served food which had been ordered by M.D. to another customer. When he inquired about his order the respondent accused M.D. of “begging for food because he is a Traveller” and chased M.D. from the premises while wielding a wooden baton.
2.2 Complainant B - E.D.
The complainant E.D. states that she was referred to by the respondent and the respondent’s wife as a “dirty Traveller who breeds like a rabbit and then begs for food” when she arrived at the respondent premises to investigate why her son M. had not been served the food which he had ordered and paid for, and why her son had been chased from the premises.
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the food ordered by M.D. was given to a companion of his. M.D. sought to have a second food order given to him.
4. Background
4.1 Complainants
M.D., complainant, states that he went to the respondent premises on 1 March, 2002. He regularly attended at the respondent premises following football training with a local soccer team. He ordered and paid for food to take away and was given a receipt by the respondent’s wife who was serving behind the counter in the respondent premises. He subsequently ordered a mineral drink, which he paid for separately, and for which he was also given a receipt. The woman serving behind the counter gave the drink to M.D. and subsequently handed a food order to another person in the premises who then left. When the complainant inquired about his food order the respondent’s wife told him that she had given the food to the other person who had left. The complainant pointed out that he had not been given the food and he did not know the other person to whom the food had been given.
The respondent’s wife then went through a door behind the counter, leading to the kitchen. The complainant presumed that she had gone to sort out the order. The owner of the premises arrived in the premises (having been out on deliveries) and M.D. explained to him what had happened. The shop owner then went through to the kitchen. He and his wife, who had been serving the complainant, returned a short while later and told M.D. to get out of the shop. The shop owner was wielding a wooden baton at this time and shouted at the complainant that he was “a Traveller and was begging for free food”. The complainant ran out of the premises followed by the shop owner. The complainant’s uncle who was passing nearby saw what was happening and shouted at the shop owner to leave his nephew alone. The complainant ran home.
When M.D. arrived home, his mother, E.D. sat him down and gave him a drink of water as he was visibly shaking and was crying. M.D. told his mother what had happened. E.D. returned to the respondent premises with her son and asked to speak with the owner. She was told by the respondent’s wife that the owner was not there and that he had “gone chasing some boys from the shop”. E.D. asked the woman behind the counter why she had not served M.D. the food he had ordered. The woman had replied that E.D. was a “dirty Traveller” who “breeds like a rabbit” because she “owns all of the children who come into the shop”. The woman made several references to M.D. as a “Traveller begging for free food”.
Some five minutes later the owner arrived outside the shop, and was, according to the complainants, visibly swinging an item with a black strap. E.D. saw him approach and called to him from the shop at which time he went to his car and placed the item which he had been swinging in the back of the car. E.D. left the shop and went to speak with him. The owner entered the shop and E.D. followed him, asking for an explanation for the manner in which her son had been treated, in particular why he had used a baton to threaten and attack her son. The owner stated that M.D. was “begging for free food” and that Travellers were “all the same” they “wanted food for nothing”. E.D. pointed out that her son had already paid for his food but had not received it.
An argument ensued and E.D. and the respondent’s wife both called the Gardaí. Two Gardai arrived at the shop and spoke to the parties separately.
4.2 Respondent
The respondent and his wife are both foreign nationals who have been living in Ireland for twenty years and have become naturalised Irish citizens. The respondent operates a Take Away restaurant in a volatile environment with frequent disturbances in the area and customers who often begin bickering or quarrelling in the shop. The respondent has experience of customers deliberately contriving to order food and have their friends take it when ready and leave the shop, and then the customers would demand a second serving of food. The respondent would not be in a position
to refer to the complainants as “Travellers” as neither he, nor his wife, mix in the local community and do not understand the term “Traveller” except in the sense of e.g. a person going on a trip/holidays etc.
On the date in question M.D. ordered food and a drink. The food was provided to his companion who left the shop. M.D. then demanded that he be given a second serving of food stating that he had not received the food which he ordered. M.D. and some other customers in the shop had been loud and abusive to the owner’s wife and had directed some racial comments at her as a consequence of which M.D. was asked to leave the premises.
5 Prima Facie Case
5.1 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 a discriminatory ground (e.g. 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 someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 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 complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainants
6.1 I am satisfied that both complainants are members of the Traveller community and this satisfies (a) at 5.1 above in respect of both complainants.
6.2 Prima Facie case - M.D.
The complainant, M.D. states that he ordered and did not receive food for which he had paid. While the respondent states that the food was served to a companion of the complainant, it is agreed that M.D. did not receive the food. This satisfies (b) at 5.1 above. In relation to key element (c) at 5.1 above with regard to M.D., the respondent states that the food was provided to a companion of the complainant’s while the complainant states that the person to whom the food was given was unknown to him. The respondent states that he then asked M.D. to leave the premises because he became abusive towards the respondent. However, the complainant’s uncle attests to the fact that he witnessed the respondent chase M.D. from the premises while wielding a baton.
On balance I am satisfied that the complainant’s version of what occurred is the more compelling and I am satisfied that the manner in which he was treated was such that it was less favourable than the manner in which a non-Traveller would have been treated in the same circumstances in that specific, derogatory, reference was made to his Traveller status by the respondent i.e “you Travellers are all the same, always begging for free food”. The complainant, M.D., has satisfied (c) at 5.1 above and has therefore established a prima facie case of discrimination on the Traveller ground.
6.3 Prima Facie Case - E.D.
E.D. states that she returned to the shop to establish why her son was not provided with the food he had paid for, and why he had been chased and threatened by the respondent. In the course of her discussions with the respondent and his wife E.D. states that she was repeatedly referred to in terms such as “a dirty Traveller who breeds like a rabbit.” I am satisfied that E.D. had derogatory remarks about her Traveller status leveled at her by the respondent and his wife and this satisfies (b) at 5.1 above. E.D. had returned to the premises to question the treatment of her son. While she was not seeking service in her own right she was, I am satisfied, opposing by lawful means an act which she regarded as discrimination against her son, which is unlawful under the Equal Status Acts, (Section3(2)(j)(iv) , the victimization ground). However, I am satisfied that the insults levelled at E.D. were met with insults directed by E.D. at the respondent and his wife, and were, according to the respondent and his wife, racist in nature. As E.D. has not satisfied me on balance that she did not instigate the argument, or the insults, I am not satisfied that E.D. was treated in a manner such that a non-Traveller who was engaging in a heated argument with the respondent would be treated more favourably. E.D. has not therefore satisfied key element (c) above and has not therefore established a prima facie case of discrimination.
7 Respondent’s Rebuttal – M.D.
7.1 The respondent states that M.D. contrived with a companion to obtain free food on the date in question and denied in the course of the Hearing of these complaints that he wielded a baton when he asked M.D. to leave his premises.
8 Conclusions of the Equality Officer
8.1 M.D., complainant, paid for a specific order of food and drink and was provided with receipts for same by the respondent’s wife. The drink which he had ordered was served to M.D., the food was not. In serving the food to another individual the respondent’s wife did not seek a receipt from that individual as proof of the order. Had she done so she would have known whether the person to whom the food was served had, in fact, ordered and paid for same. In any event the error, if there was one, was on the part of the respondent’s wife and was not attributable in any way to M.D., who inquired, as he was entitled to do, about the food which he had ordered and paid for. However, it is not with the issue of whether or not the food was served to the complainant that I am concerned, but rather with the manner in which he was treated when he brought the issue of non-service to the respondent’s, and the respondent’s wife’s, attention. He was told that he was “a Traveller, always begging for food”.
8.2 M.D.’s version of events was corroborated by his uncle’s evidence to the effect that he witnessed the respondent wield a baton and chase after his nephew.
8.3 The Garda report submitted to the Tribunal in this matter clearly shows that the respondent stated to the Gardaí who were in attendance that he “banged a baton on the counter” to frighten off the complainant, M.D., who was “looking for free food.”
8.4 The respondent states that he has always and will continue to serve Travellers in his premises. He also states, as does his wife, that they do not recognize the term Traveller, other than as a reference to a person undertaking a journey. The respondent was, at best, inconsistent in his references to his knowledge of the
Traveller community. I do not accept that the respondent and his wife are unaware of the term Traveller as it applies to members of the Traveller community. Both have spent a considerable time in Ireland and in that time have operated a business in a community that contains a very high number of Travellers, with a number of halting sites in the vicinity.
8.5 The respondent and his wife allege that M.D. contrived to have food served to a companion of his and fraudulently seek a second order of food. The respondent produced no evidence whatsoever to corroborate this allegation. There is no evidence to show that the person to whom the food was actually served was in any way known to the complainant, M.D., or that that person had not placed an order for food in his own right.
8.6 It is clear to me from all of the evidence provided that the respondent does indeed operate in a volatile environment and that some patrons have in the past contrived to fraudulently obtain food orders without paying for them. This does not excuse the manner in which the complainant M.D. was treated on this occasion when he inquired about his food order, particularly when he was in possession of receipts for the items which he had ordered. The respondent’s reaction to the situation was to immediately attack the complainant’s Traveller status and to associate that status with the alleged fraud in seeking to obtain food that had not been paid for. In circumstances where the respondent was not even present when the issue of serving the food to the wrong person arose I am satisfied that his allegations and behaviour towards M.D. are not related to or based on the facts of this particular situation but, rather, on previous bad experiences.
While it is not clear from the evidence presented whether the respondent would wield a baton and chase off non-Traveller customers in a situation similar to that in the instant complaint, it is clear that the respondent, on this occasion, saw fit to directly attribute his unproven allegations of fraud to the complainant’s Traveller status, something which would not arise were a non-Traveller involved. I am satisfied that the complainant was therefore treated in a less favourable manner on the basis of his Traveller status than a non-Traveller would have been in the same or a similar situation.
8.7 E.D.’s attendance at the respondent premises to question the treatment afforded her son is understandable. However, while I am satisfied that E.D. had offensive remarks related to her Traveller status directed at her by the respondent and his wife, I am also satisfied, based on all of the evidence presented that E.D. became embroiled in a heated argument with the respondent and his wife in which she traded insults with them.
8.8 Taking all of the evidence into consideration I am satisfied, on balance, that M.D. was treated in a discriminatory manner on the basis of his Traveller status and that the respondent has failed to rebut the inference of discrimination.
9 Decision
9.1 I find that the complainant, M.D. was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act and that the actions of the respondent in the course of the discrimination, threatening and intimidating the complainant and physically running him off the premises, were such that they had a severe and traumatic effect on M.D..
9.2 I find that E.D., complainant has failed to establish a prima facie case of discrimination on any of the grounds under the Equal Status Act.
10 Redress
10.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
10.2 I hereby order that €2000 be paid to M.D. by the respondent for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
21 July , 2005