THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2011-034
PARTIES
Bridget Connors
and
Mary Cummins t/a Abbey Restaurant
File Reference: ES/2009/054
Date of Issue: 12th August, 2011
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2011-034
Bridget Connors
and
Mary Cummins t/a Abbey Restaurant
Key Words
Equal Status Acts, 2000 to 2008 - Direct discrimination, Section 3(1) - less favourable treatment, Traveller community Ground - Section 3(2)(i), failure to establish a prima facie case
Delegation under Equal Status Acts, 2000 to 2008
The complainants referred complaints to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 8th May, 2009. On the 28th February, 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008 the Director delegated the case to me, Enda Murphy, 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 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 3rd August, 2011.
1. Dispute
1.1 The dispute concerns a complaint by Mrs. Bridget Connors that she was discriminated against by the respondent on the Traveller community ground contrary to section 5 of the Equal Status Acts, 2000 to 2008 when she attempted to avail of the toilet facilities in the respondent's restaurant on 6th April, 2009.
Summary of the Complainant's Case
2.1 The complainant stated that she was present in the shopping centre where the respondent's restaurant is located at lunchtime on 6th April, 2009 when she attempted to use the toilet facilities within the restaurant. The complainant stated that she entered the respondent's premises through the main entrance and proceeded to walk through the restaurant and into the area where the toilets are situated. The complainant stated that she had just entered the toilets facilities when Mrs. Mary Cummins approached the door of the cubicle and shouted loudly at her to "get out" and that "she should not be there". The complainant stated that she was totally taken aback by Mrs. Cummins attitude and she claims that she was not aware prior to this incident of the respondent's policy whereby the toilet facilities were restricted to paying customers. The complainant stated that she had used the toilet facilities in the respondent's restaurant without any difficulty on numerous other occasions prior to this occasion.
2.2 The complainant accepts that she was not a paying customer at the respondent's restaurant on this occasion; however, she claims that she urgently needed to use the toilet facilities at that juncture because of a medical condition and that her daughter, who was also present with her on this occasion, offered to reimburse the respondent for the use of the facilities. The complainant stated that she had to vacate the toilet facilities and the premises after being instructed to do so by Mrs. Cummins and she denies that she became verbally aggressive towards her during the course of the incident. The complainant claims that she was very upset by the incident and she submitted that the reason why she was refused access to the respondent's toilet facilities on this occasion was directly attributable to her membership of the Traveller community.
Summary of the Respondent's Case
3.1 The respondent, Mrs. Mary Cummins, stated that she has been the proprietor of the Abbey Restaurant, which is located in the Super Valu Shopping Centre in Enniscorthy, for approx. 20 years. Mrs. Cummins stated that the respondent has had a strict policy in place for many years whereby the use of the toilet facilities is restricted exclusively to paying customers at the restaurant. The respondent submitted that this policy has been put in place to comply with health and safety regulations and also to ensure that the toilet facilities are available to paying customers when they need to use the facilities. The respondent submitted that there is a sign situated on the door at the main entrance to the restaurant which outlines its policy in relation to the use the toilet facilities.
3.2 The respondent stated that the complainant entered its premises from the shopping centre on 6th April, 2009 and proceeded to walk directly towards the area where the toilets are situated. Mrs. Cummins stated that when she approached the complainant and asked if she wished to be served, the complainant responded that she wanted to use the toilet facilities. Mrs. Cummins stated that she informed the complainant in a polite manner that the use of the toilet facilities was restricted to paying customers; however, the complainant completely ignored her instructions and proceeded to open the door to the toilet facilities. Mrs. Cummins stated that she followed the complainant into the toilets to discover that she had already commenced using the toilets with the door wide open and thereby leaving herself totally exposed. Mrs. Cummins stated that she closed the door of the cubicle to avoid embarrassment to anyone else that may have entered the toilets at that juncture. Mrs. Cummins stated that she then left the toilet area and returned to the kitchen in the restaurant to continue her work. Mrs. Cummins stated that the complainant returned to the restaurant after using the toilet facilities and became verbally abusive and demanded to know her name. Mrs. Cummins stated that she gave the complainant her first name but refused to disclose her surname.
3.3 Mrs. Cummins accepts that she requested the complainant to leave the premises at that juncture as she was acting in an aggressive manner and thereby causing a disturbance to the paying customers within the restaurant. The respondent denies that the reason the complainant was informed that she was not allowed to use the toilet facilities on this occasion was in any way connected to her Traveller identity and she claims that this policy is applied uniformly to anyone who is not a paying customer, regardless of whether or not they are members of the Traveller community. The respondent submitted that it has to enforce this policy on a regular basis as people who frequent the shopping centre constantly try and use the toilet facilities in the restaurant.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 It was not in dispute between the parties that the complainant is a member of the Traveller community. The complainant has claimed that she was subjected to discrimination on the grounds of her membership of the Traveller community in terms of its refusal to allow her to use the toilet facilities at its restaurant on 6th April, 2009. The respondent denies that the complainant was subjected to discrimination on the grounds of her membership of the Traveller community and it submitted that it has a policy in place whereby the use of its toilets facilities are restricted exclusively to paying customers. The respondent submitted that the refusal to allow the complainant to use its toilet facilities was entirely in keeping with this policy and it denies that this decision was in any way connected to her membership of the Traveller community. Therefore, the question that I must decide in relation to this issue is whether the complainant was treated less favourably than another person would have been, in similar circumstances, on the grounds of her membership of the Traveller community in terms of the respondent's decision to allow her to use the facilities in its restaurant on the date in question.
4.3 In considering this issue, I note that it was not in dispute between the parties that the complainant was informed by the respondent on 6th April, 2009 that she was not permitted to use the toilet facilities within the restaurant. Neither was it in dispute that the complainant was not a paying customer when she sought to use the toilet facilities within the restaurant on this occasion. I accept the respondent's evidence that it has a policy in place within the restaurant whereby the use of the toilet facilities is restricted exclusively to paying customers. I have found the respondent's evidence to be very credible regarding the manner in which this policy is applied and I accept that it is not applied in a discriminatory manner towards members of the Traveller community, or indeed to any other specific sector of the community. Having regard to the evidence adduced, I am satisfied that the reason the complainant was informed that she could not use the toilet facilities on this occasion was entirely in keeping with the respondent's policy in this regard and that it was in no way connected to her Traveller identity.
4.4 It is clear from the evidence adduced that the complainant took umbrage when she was informed by the respondent that she was not permitted to use the toilet facilities and that there was an exchange of words between herself and Mrs. Cummins in the restaurant area of the premises. Having regard to the evidence adduced, I am satisfied that the reason the complainant was requested to leave the respondent's premises on this occasion was not in any way influenced by her Traveller identity but rather was directly attributable to the disturbance which she was causing to other customers within the restaurant after she was refused permission to use the toilet facilities. I am satisfied that a non-Traveller would also have also been requested to leave the restaurant by the respondent in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her membership of the Traveller community in terms of the respondent's decision to refuse her access to its toilet facilities on the date in question.
Decision
5.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1) and 3(2)(i) and contrary to section 5(1) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent.
_________________
Enda Murphy
Equality Officer
12th August, 2011