Margaret Stokes
(represented by the Longford Traveller Movement)
V
Shaw's Hardware, Mullingar
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a shop - Non attendance at hearing by respondent
Delegation under the Equal Status Acts
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.
Dispute
This dispute concerns a complaint by Margaret Stokes that she was refused service in Shaw's Hardware by a member of staff, Mr Doherty on 29 June 2002 because of her membership of the Traveller community.
Background
Both parties were notified by registered post on 31 July 2006 that the Hearing of the complaint would be held at 10.30 am on Tuesday 5 September 2006 in the Mullingar Park Hotel. Prior to the Hearing confirmation was obtained from An Post's website that the registered letters had been delivered to the parties. An Post's records show that the respondents' notification was accepted by "M. Shaw" on 1 August 2006.
Hearing on 5 September 2006
At 10.30 am on 5 September 2006, the complainant arrived for the hearing with her representative. As there was no sign of the respondent, the commencement of the hearing was delayed for 30 minutes.
hen the respondent had not appeared by 11 am, I convened the hearing explaining that, irrespective of whether the respondent was present or not, the onus was still on the complainant to establish a prima facie case of discrimination. I then proceeded to take the evidence of the complainant. At 11.25 am, I closed the hearing stating that I would issue my decision shortly in the matter.
At 11.30 am, while I was still present in the Hearing room, I received a call from Denis Shaw of J.A. Shaw & Co., Solicitors asking what the position was in regard to the Hearing as he had just been handed the Hearing notification by Mr Des Doherty. Mr Shaw explained that Mr Doherty had been abroad for a number of weeks and had only contacted the solicitor's office that morning with regard to the Hearing.
I explained to him that the Hearing had now concluded and that the next step was for me to write up my decision based on the evidence that was put to me at the Hearing. However, I did explain to him that, regardless of which way the decision went, that it could still be appealed by either party to the Circuit Court within 42 days of receipt.
Mr Shaw thanked me for my time and indicated that he would await receipt of my decision in due course.
Complainant's Evidence
Ms Stokes is originally from Mullingar but has lived in Edgeworthstown since her marriage 15 years ago.
When she was living in Mullingar, she used to visit Shaws on occasion to purchase goods for her mother. She had not been in Shaws for more than 10 years prior to 2002.
On 29 June 2002, she was in Mullingar visiting her mother. Her mother wanted to buy a deep fat fryer and they went into town that afternoon to see what was available and compare prices.
Having been in some other shops, the complainant, her mother, her two sisters and two children went into Shaws together to look at deep fat fryers.
While beside the deep fat fryers, one of the sisters became interested in an iron that appeared to offer good value. When she lifted the box, however, she realised that the box was empty and made the comment "There's nothing in it".
At that point, Mr Doherty appeared and said "Which of you took it?". He then indicated that if they left the iron back that "there'll be nothing about it".
When the complainant asked him if he was blaming them, he replied that he could rewind the cctv cameras if he wanted. Margaret Stokes asked him to do so but he took no action.
She then offered to allow him to search their bags and the baby's buggy. He declined to do so but instead told them they were barred. When the mother insisted that they had done nothing wrong and that they should be allowed to shop around, he replied that they were "not entitled to shop around"
t that point, one of the sisters called the Gardai. When the Gardai arrived, the complainant told them what had happened and took everything out of their bags and the buggy to show that they did not have the iron. A red-haired Garda indicated that he was satisfied that they did not have the iron.
The other Garda then went to speak to Mr Doherty and returned to say that it was a "private matter" between the shop and the group. The Gardai then left the store.
No further discussion took place with Mr Doherty.
The group then decided to leave the shop. As they were on their way out, a female member of staff with auburn hair approached them and told them to "let it die down for a while and come back to the shop". In response, the mother said that she was entitled to shop around and that the shop was not entitled to bar her.
Margaret Stokes has not visited Shaws since and does not know whether her mother has been back either.
She believes that she received the treatment she did because Mr Doherty recognised them as Travellers and that non-Travellers would not have received the same treatment. She said that she was highly embarrassed and humiliated by the incident.
Note on Garda Witnesses
Five weeks prior to the Hearing, Ms Stokes contacted the Tribunal to ask for the two Gardai involved to be called as witnesses. She was told that the Tribunal would require their names in order to formally summons them. Two week s prior to the Hearing she again phoned to say that she had spoken to the local Sergeant, John Connolly, who told her that he was still making enquiries to establish which two Gardai were on duty that day.
On 21 August 2006, I wrote to Sergeant Connolly indicating that I, as the investigating Equality Officer, believed that it was appropriate that at least one of the Gardai attend the Hearing and I requested that he arrange for one or both to attend the Hearing when they had been identified. However, no Garda appeared at the Hearing on 5 September 2006 and no communication has been received from Sergeant Connolly in the matter since.
Decision
In complaints such as this, the onus is on the complainant to establish a prima facie case by appearing at the hearing to give evidence. At the hearing on 5 September 2006, I took the evidence of Ms Stokes and questioned her on it. Overall, I found Ms Stokes to be a very credible witness and I find that I have no reason to question the account she gave of the events of 29 June 2002. I am, therefore, satisfied that Ms Stokes has established a prima facie case of discrimination with regard to the events of 29 June 2002.
Normally in such circumstances, where a prima facie case has been established, the respondent is provided with an opportunity to rebut the allegation of discrimination by showing that there was a genuine non-discriminatory reason for the events that occurred. On this occasion, however, the respondent did not avail of the opportunity to do so by attending the hearing. pIn deliberating on the evidence before me, I consider that Mr Doherty would not have acted in the same manner if a group of non-Travellers had been involved and they had satisfied the Gardai that they did not have the iron in their possession. In such circumstances, I believe that any reasonable person would have been prepared to admit that they had misread the situation and would have apologised to the group. Mr Doherty did not do so on this occasion and I consider that the reason for this was that he recognised the group as Travellers and was not prepared to admit to them that he may have made a mistake. For this reason, I have formed the opinion that Mr Doherty's refusal to overturn his original decision to bar the group was guided by the fact that they were Travellers and I consider that, in so doing, that he discriminated against them contrary to the provisions of the Equal Status Acts.
Accordingly, 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 Acts 2000-2004 and that the respondent has failed to rebut the allegation.
I order that the respondent pay the sum of €500 to the complainant for the hurt and humiliation suffered on the afternoon of 29 June 2002.
Brian O'Byrne
Equality Officer
23 October 2006