Nora and Katie O'Donoghue V Michael Corrigan, Superfruits Shop, Cork
Date of Issue 8/11/2005
Equal Status Act 2000
Summary of Decisions DEC-S2005-166-167
Nora and Katie O'Donoghue V Michael Corrigan, Superfruits Shop, Cork
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Traveller community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a shop.
Dispute
This dispute concerns a complaint by Nora and Katie O'Donoghue, Cork that they were discriminated against, contrary to the Equal Status Act 2000, by the manager of Superfruits Shop in the English Market, Cork.
The complainants maintain that, on 20 August 2002, they were asked to leave Superfruits shop by the owner in a very abrupt manner without any reasonable explanation. The respondent totally rejects that he operates a discriminatory policy against Travellers. He says that the complainants were asked to leave the shop because large queues had formed at the checkout because of their inability to follow simple shopping procedures with regard to weighing goods.
Decision
The Equality Officer found that the treatment afforded the complainants on 20 August 2002 appeared to have been contrary to the shop's declared standard practice where customers have caused delays at checkouts. He said that, according to the respondent, the normal practice was for customers to be allowed check-out the goods that were already priced and then they are required to return with the unweighed goods to the weighing scales before rejoining the end of the queue.
On 20 August 2002, however, the respondent decided that the quickest way to clear the queue was to evict the complainants rather than give them the opportunity to pay for the goods they had already checked through. On the basis of the evidence before him, the Equality Officer said that he could not accept that the complainants received the same treatment as a non-Traveller would have received in similar circumstances. Accordingly, he found, on the balance of probabilities, that the respondent had recognised the complainants as Travellers when the queue delays were brought to his attention and that it was this fact that influenced his decision to evict them rather than allow them to pay for their goods and return to the weighing scales with the unweighed goods. The Equality Officer found that discrimination had occurred and awarded each complainant €500 for the humiliation and loss of amenity suffered.
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Equal Status Acts 2000-2004
Decisions DEC-S2005-166-167
Nora and Katie O'Donoghue V Michael Corrigan, Superfruits Shop, Cork
1. Dispute
This dispute concerns a complaint by Nora and Katie O'Donoghue, Cork that they were discriminated against, contrary to the Equal Status Act 2000, by the manager of Superfruits Shop in the English Market, Cork.
The complainants maintain that they were 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 Nora and Katie O'Donoghue that, on 20 August 2002, they were asked to leave Superfruits shop by the owner in a very abrupt manner without any reasonable explanation.
3. Summary of Respondent's Case
The respondent totally rejects that he operates a discriminatory policy against Travellers. He says that the complainants were asked to leave the shop because large queues had formed at the checkout because of their inability to follow simple shopping procedures with regard to weighing goods.
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.
5.1 Evidence of Complainants
Mrs Katie O'Donoghue has lived in Cork all her life and has shopped on a weekly basis in Superfruits for many years. She never had trouble in the shop prior to 20 August 2002.
On 20 August 2002, she visited Superfruits with her daughter Nora O'Donoghue.
Katie O'Donoghue filled a basket with goods and joined a large queue for the checkouts.
When she reached the checkout, all her goods were checked through except for a bag of bananas which the checkout girl noticed that Mrs O'Donoghue had failed to weigh. The girl volunteered to bring them back to the weighing scales for her but was stopped by a manager who "gave out to her".
The manager then turned to the complainants and said "if you have not got the ability to shop here, you can get out". At that point, Mrs O'Donoghue offered to weigh the bananas herself. Before she could do so, the manager took them from her saying "No - Get out - I don't serve your kind".
They asked the man for his name but he refused to give it. Nora O'Donoghue then phoned the Gardai but, when they did not come after 40 minutes, she and her mother left as Katie O'Donoghue needed to get home to take her medication.
Neither of them has shopped in Superfruits since.
Evidence of Respondent
Michael Corrigan said that Superfruits has being operating in the English Market in Cork City Centre since 1969.
He said that "the world and his wife" visit the English market. He has many regular customers as well as first-time visitors such as tourists. Travellers also sometimes visited his shop. He said that Travellers were "not an issue" with him.
When asked at the Hearing whether he would recognise a Traveller and whether the complainants looked like Travellers to him, he said that the mother did but that Nora O'Donoghue did not.
The shop has a constant throughput and it is important that queues move quickly. For this reason, the system in 2002 was for customers to weigh their own goods before joining the checkout queue. He expected that customers would have the "social skills to do as required".
To avoid delays, staff had been told not to accept goods that had not already been weighed by the customer. In situations where unweighed goods were presented, the practice was for staff not to accept those items at the checkout and only to process items that had been priced already. Having paid for the priced goods, customers would then be advised to return to the weighing scales with the unweighed goods and to join the end of the queue when they had weighed and priced their goods. On the rare occasion when an "undesirable" such as a drunk entered the shop to purchase goods, staff would usher him or her through the checkout quickly to avoid problems for other customers.
At the Hearing on 15 September 2005, he said that he would not have known the complainants prior to August 2002 as the shop could have up to 1600 customers each day.
He recalls that, on 20 August 2002, a customer came to him to complain about the long queues. When he went to see what was happening, he saw that both checkouts were stopped.
When he approached the checkouts, he saw that one of the complainants was at the top of the queue while the other was running back towards the weighing scales.
He immediately approached the complainants and said to them " If you don't know how to shop here, you can't shop here".
He then decided that the quickest way of dealing with the situation was "to get rid of them" rather than serve them. He took their goods from them and told them to leave.
Mr Corrigan said that, in the past 15 years, this was only the third time that he had asked customers to leave in this manner. He said, however, that at this point in time, he cannot recall the precise details of the two previous incidents or the identity of the customers involved.
When asked at the Hearing why he did not allow the complainants to pay for the goods that were priced, he said that, at the time, his priority was to clear the shop and he felt that the quickest solution was to tell the women to get out.
After they left the checkout, he had to open the cash register himself to adjust the credit to reflect the fact that some of their goods had already been checked through but had not been paid for. This would have taken him at least two minutes to sort out.
He said that he could not recall what had caused the other queue to stop on the day or whether he also had to adjust the credit on that machine as well.
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 complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service on 20 August 2002.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his or her 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 complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondent acknowledges that the complainants were refused service on 20 August 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants was less favourable than the treatment a person not covered by the Traveller community ground would have received, in similar circumstances.
7.3 In considering the treatment afforded the complainants on 20 August 2002, I note that it appears to have been contrary to the shop's declared standard practice where customers have caused delays at checkouts. According to the respondent, the normal practice is for customers to be allowed check-through and pay for the goods that are priced and then they are required to return with the unweighed goods to the weighing scales before rejoining the end of the queue.
On this occasion, however, the respondent stated that he decided that the quickest way to clear the queue was to evict the complainants rather than give them the opportunity to pay for the goods they had already checked through. This decision was taken despite the fact that the manager knew that, by not letting the complainants pay for the goods that had been checked through already, the cash register would be unavailable for a further 2 minutes while he adjusted the credit on it.
On the basis of the above and in the absence of any clear evidence as to what occurred or who was involved on the two previous occasions that Mr Corrigan says people were directly asked to leave the shop, I find that I cannot accept that the complainants received the same treatment a non-Traveller would have received in similar circumstances. Accordingly, I find, on the balance of probabilities, that the respondent recognised the complainants as Travellers when the queue delays were brought to his attention and that it was this fact that influenced his decision to evict them rather than allow them to pay for their goods and return to the weighing scales with the bananas.
7.4 In the circumstances, I find that a prima facie case of discrimination on the Traveller community ground has been established and that the respondent has failed to rebut the allegation.
Decision
8.1 I find that a prima facie case of discrimination has been established by the complainants 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 I order that the respondent pay each complainant the sum of €500 for the humiliation and loss of amenity suffered on 20 August 2002.
Brian O'Byrne
Equality Officer
8 November 2005