THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2008

Decision No. DEC-S2009- 048

PARTIES

Martina Power

(represented by Mr. Pat Kelly,

Co-ordinator of the local Family Resource Centre)

-v-

Heatons

File Reference: ES/2007/0041

Date of Issue: 10 July 2009

Key words

Equal Status Acts 2000-2004 - Section 3(2)(i), Traveller ground – treatment not less favourable – different treatment – no prima facie case

1.     Delegation under the relevant legislation

1.1.     On 16^th May, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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. This delegation took place on 17^th October, 2008, on which day I commenced my investigation.

1.2.     As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Wednesday, 27^th May, 2009. Both parties were in attendance at the hearing.

2.     Dispute

2.1.     The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Traveller ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(i) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated her less favourably because she was a Traveller in the course of an incident that occurred on 19^th February, 2007 and was resolved the following day.

3.     Summary of the Complainant’s case

3.1.     The complainant is a member of the Traveller community. She said that she purchased a pair of curtains from the respondent on 19th February, 2007. She said that when she was collecting her child from school later that day, she provided a lift to a Ms A, who also had a child in that school. The complainant stated her belief that Ms A took the receipt for the curtains out of the bag they were in while she was looking at them. She said that upon returning home, she inspected the curtains and found that they were not suitable for the use she intended. She therefore decided to change them, and it was only then, when she looked for the receipt, that she found it was missing.

3.2.     The complainant said she then went back into Heatons and went up to the till to exchange the curtains. She met with Ms B, the Manager of the respondent’s premises, as well as another member of the respondent’s staff. Ms B indicated to the complainant that they knew the curtains had been bought earlier but that Ms A had already been in with the receipt and had received a refund for the curtains in question. The complainant said she consequently offered to leave the curtains with Ms B until the issue was “sorted”. On the way out, she said that she met friends who saw that she was visibly upset and asked what had happened to her.

3.3.     The complainant said she then went to Ms A’s house to resolve the matter. She said that Ms A admitted what she had done and apologised. The complainant then went back to Heatons and told Ms B of this meeting, whereupon Ms B said that if the money was not returned before 1 p.m. the following day, the Garda Siochana would be called. The complainant said she then went around to the Garda station herself and told them what happened. She said that when the Garda she spoke with offered to call around to Ms A, she said she would rather he didn’t.

3.4.     The complainant said that she returned the following day to the respondent’s premises to see if the money had been given back and found that it had been. She said that Ms B then told her that Ms A had been barred for life out of Heatons and that anytime the complainant went in there, she would also be watched. She said that she was hurt and annoyed by this and left the shop. She said that Ms B should have spoken to her in a private room rather than out on the shop floor and that, since this incident, she would not be comfortable going back into the shop. Mr. Pat Kelly, for the complainant, argued that it was unreasonable for Ms B to say to the complainant that if the money was returned, no action would be taken and, in that context, he questioned why Ms B would react the way she did if she didn’t think there were two people involved in the ‘scam’ in question. He added that the complainant had nothing to do with the fraudulent claim.

3.5.     The complainant said that Ms B was well aware that she was a member of the Traveller community. She said that the town in question was a small town and that people knew each other, and that it was a town where, if your name is Power, then you are deemed to be a Traveller. She said that she would be generally known as a Traveller in any case. She said that most Travellers lived in the area in which the complainant lived, though there were non-Travellers there also. Mr Kelly added that there was a belief in the town that if you were from the complainant’s estate, then you were a Traveller, and he related anecdotal evidence in that regard. The complainant added that there were two members of staff in Heatons who would have been reared in the same estate as the complainant and still lived there today but were non-Travellers. She said that these two people would have been well aware of the Power family and that the complainant was a Traveller.

3.6.     The complainant said that she had previously shopped at the respondent’s premises and that there had not been any prior incidents of discrimination, but she has not shopped there since the incident in question. She said that she felt she was being discriminated against and was treated the way she was because she was a Traveller. She said that she considers she would have been treated differently if she was not a Traveller. In particular, she said that, if she had not been a Traveller, then once the money had been paid back, nothing more would have been said to her.

4.     Summary of the Respondent’s case      

4.1.     Ms B was present at the hearing representing the respondent. She agreed, for the most part, with the complainant’s description of the incident in question. However, she said she could neither confirm nor deny that she made the statement that the complainant alleges she made. She referred in that regard to her reply to the notification in which she said she never accused the complainant of stealing anything and that the complainant “would not be watched anymore than any other customer. It is normal practice for all staff members to be vigilant when on the floor both to help customers and for security reasons”.

4.2.     By way of clarification, Ms B added that Ms A received money back on foot of the receipt because she sought the help of a staff member of the store to obtain the exact item that had been sold to the complainant earlier. She then presented that item at the counter along with the receipt, thus claiming she had bought the item earlier.  She said that she did not inform the Gardai of the incident “on compassionate grounds” when she was informed of Ms A’s “particular circumstances”. However, she said that she had to report the matter to Heatons Head Office, who then informed the Gardai in line with its procedure.

4.3.     Ms B said she believed she dealt with the issue in as sympathetic a manner as possible and treated the complainant no differently to any other customer. She said that at no time did she suggest that the complainant was involved in the fraudulent claim. She stated that other members of her staff may well have been aware that she was a member of the Traveller community but that the first she became aware of this was when she received the Notification required under Section 21(2) of the Acts. She said that she was not a native of the town in question and therefore did not have the same knowledge of the residents of the town as local people had. Nonetheless, she said that she knew many people who lived at the respondent’s address who weren’t Travellers and that she would know Powers in the town in question who were not Travellers. She said that, in any event, she would not have handled the issue any differently even if she did know the complainant was a Traveller and that, as her actions were therefore made regardless of whether the complainant was a Traveller or not, they were not discriminatory.

5.     Conclusions of the Equality Officer

5.1.     Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. 

5.2.     In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complainant submits that she was treated less favourably because she was a member of the Traveller community and that Ms A would have dealt with the incident in question entirely differently if the complainant had not been a Traveller. In particular, the complainant alleges that Ms A’s statement that she was being watched would not have been made to someone who was not a Traveller.  

5.3.     In all the circumstances of the present complaint, the complainant must show, in the first instance, that the treatment she received was less favourable than someone else would have received in the same or similar circumstances. I am satisfied that the treatment by Ms B of both the complainant and Ms A was, in fact, more favourable than someone else in the same circumstances would have received. For example, the normal procedure in relation to similar incidents would have been for Ms B to contact the Gardai immediately upon becoming aware of the incident. Instead, Ms B took it upon herself to resolve the matter and proceeded to do so in what she described as as sympathetic a manner as possible.

5.4.     In relation to the alleged statement of Ms B that the complainant would be watched, I am satisfied, on balance, that, whatever Ms B did say to the complainant, she was only expressing the policy of the respondent that it is normal practice for all staff members to be vigilant when on the shop floor both to help customers and for security reasons. I do not believe she was suggesting that the complainant was involved in the incident. In any event, I am satisfied that it was not less favourable treatment as, in all the circumstances of the present complaint, that statement would have been made to the complainant no matter who she was. It was therefore irrespective of whether she was a member of the Traveller community. In that light, whether Ms B was aware that the complainant was a Traveller is irrelevant.

5.5.     In short, I am satisfied that the complainant would have been treated exactly the same if she was not a member of the Traveller community.  As there was therefore no less favourable treatment, she has failed to establish a prima facie case of discrimination in the context of this complaint.

Final Comments

5.6.     The complainant’s embarrassment and frustration at what occurred in the context of this complaint was undoubtedly genuine. However, Ms B’s treatment of the complainant was perfectly reasonable in the circumstances, and was certainly not less favourable. The complainant’s allegation that other service providers in the town in question discriminate against Travellers is irrelevant. Based on the circumstances of the present complaint, the respondent does not do so and that is what matters in this case.

6.     Decision

6.1.     In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: 

6.2.     I find that, further to Section 38A of the Equal Status Acts, the complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her. The complainant has therefore failed to establish a prima facie case of discrimination on the part of the respondent.  

6.3.     Accordingly, the complainant’s case fails.

___________

Gary O’Doherty

Equality Officer

10 July 2009