Equal Status Acts 2000 - 2008
Equality Officer Decision
DEC-S2009-045
Kathleen McDonagh
V
Mr Pat Howley & Heatons
Date of Issue 9 July 2009
File Ref ES/2006/165
Key words
Equal Status Acts - Direct discrimination, section 3(1)(a) - Traveller Community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Withdrawal of invitation to shop
1 Delegation under the Equal Status Acts
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2007. On 12 December 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director 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 Acts, 2000 - 2007.
2 Dispute
This dispute concerns a complaint by Kathleen McDonagh that she was discriminated against on the Traveller community ground by Mr Pat Howley and Heatons when she was refused admission to their stores in Castlebar and Ballina, the most recent refusal being on 18 October 2006.
3 Summary of Hearing
3.1 The Hearing of this complaint was held on 30 April 2009 in Castlebar. The Hearing was attended by the complainant, Ms McDonagh, Mr Pat Howley himself and three representatives from Heatons.
Ms McDonagh described how she had lived in Castlebar for many years and how she had frequently shopped in Heatons in Castlebar and Ballina with no problem up until 2001/2002 when she was barred by Mr Pat Howley. She had seen Mr Howley previously on duty in the store but had had no problem with him until then.
On the occasion she was barred in 2001/2002, Ms McDonagh said that Mr Howley had sent a female staff member to follow her around the store before Mr Howley himself approached her and told her she was barred for “trying to shoplift”. Ms McDonagh believes that she was barred because Mr Howley recognized her as a member of the Traveller community.
Ever since then she has been refused entry to the two Heaton’s shops whenever Mr Howley was on duty. The last refusal occurring on 18 October 2006 the date on which the alleged act of discrimination occurred
Mr Howley, Security Manager, gave evidence that he had seen Ms McDonagh shopping on many occasions in Heatons in both Castlebar and Ballina prior to a particular incident in August/September 2002. He said that he recognized her as a Traveller from early on but that this was not an influencing factor in her being barred.
In or around August/September 2002, Mr Howley said that he saw Ms McDonagh acting suspiciously in the shop. He said that he noticed her crouching down behind a clothing rail and suspected that she may be attempting to remove security tags from clothes. He said that he then asked a security guard to keep Ms McDonagh under surveillance. He said that, as Ms McDonagh was heading towards the exit, she seemed to suddenly become aware that the security guard was watching her and promptly discarded some items from her person and kicked them under a clothing rail.
Mr Howley said that he and the security guard then approached Ms McDonagh to ask her about the items on the floor at which point, he said, Ms McDonagh became very abusive. He then informed her that her invitation to shop in Heatons was being withdrawn.
Mr Howley said that since 2002, he has had to ask Ms McDonagh to leave Heaton’s stores on at least 8 occasions, the last being on 18 October 2006, the date of the alleged act of discrimination.
4 Conclusions of the Equality Officer
4.1 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.
4.2 In the case before me, the complainant maintains that she was discriminated against by Mr Pat Howley and Heatons on the Traveller community ground in being barred from Heatons on 18 October 2006.
In considering the evidence before me, I note that both parties acknowledge that they knew each other to see before their direct dealings with each other in 2002. Mr Howley has stated that he recognized Ms McDonagh from her earlier visits to Heatons and knew her to be a Traveller. For her part, Ms McDonagh has said that she recognised Mr Howley as a security man from her previous visits to Heatons. Accordingly, it would seem that, up until the day of the alleged attempted theft of goods in 2002, when he decided to bar her, Mr Howley had no problem with Ms McDonagh or the fact that she was a Traveller.
From listening to both parties, I consider Mr Howley’s evidence to be the more credible and accordingly, I find that his original decision to bar her and subsequent decisions to refuse her admission were based on a concern over potential shop-lifting rather than Ms McDonagh’s membership of the Traveller community.
5 Decision
I find that a prima facie case has not been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 – 2008. Accordingly, I find in favour of the respondents in the matter.
Brian O’Byrne
Equality Officer
9 July 2009