THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-002
PARTIES
Rosie McDonagh
(represented by Gilvarry and Associates, Solicitors)
-v-
Next Department Store
(represented by Siobhan Phelan, B.L.,
instructed by Eversheds, O'Donnell, Sweeney, Solicitors)
File Reference: ES/2009/0134
Date of Issue: 11th January 2011
Key words
Equal Status Acts - Section 3(1) - Section 3(2)(i), Traveller ground - Asked to leave store - inappropriate behaviour - fair procedures - association with family
1. Delegation under the relevant legislation
1.1. On 21st December, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 7th May, 2010, in accordance with her powers under section 75 of the Employment Equality Act, 1998 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 23rd September, 2010. As a key witness was unable to attend on that date due to illness, a second hearing was held on 2nd November, 2010. Both parties were in attendance at the hearings.
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 in relation to asking her to leave its premises and in its treatment of her in that respect.
3. Summary of the Complainant's Case
3.1. The complainant is a member of the Traveller community. She submitted that she was in the respondent's premises on 22nd July, 2009, when she was approached by a Manager, Ms A, who told her that she had to leave the store as she was barred "because of the bad company she was keeping". She said that Ms B, another Manager, who arrived later, also told her she was barred. She said that that Ms A got "a bit narky", and grabbed her by the hand, bruising her in the process. She denied that she was shouting or using bad language. She also denied that, in the course of asking her to leave, Ms A or Ms B mentioned an incident in June (see par. 3.4 below). She said the Gardaí were called, but told her they could do nothing about the situation and that she needed to take it up with her solicitor, which she did that day.
3.2. The complainant submitted that she visited the shop a number of times before this incident, being a regular customer there, and she feels that she is effectively being discriminated against as a result of the policy in the store to carefully watch members of the Traveller community and to bar them without hesitation. She said that she has been followed in the store and watched and described incidents involving this alleged behaviour, saying it happened several times. The complainant also referred to other incidents when she said staff members of the respondent told her she was barred because of the company she kept. She submitted that she has tried to go to the store on a few occasions since the incident in July, 2009, and has been treated in the same fashion again, including another incident where she said Ms A again bruised her.
3.3. The complainant denied the respondent's allegation that she was involved in throwing clothes on the floor on a previous occasion in June 2009, and denied the evidence Ms A gave in that respect. She accepted that Ms C and Ms D, who were related to her, had thrown clothes on the floor, but she said that her only involvement in the incident was to take up the relevant clothes and put them back on the hanger. She said she did this because she felt bad about what Ms C and Ms D had done. She said that Ms C and Ms D then left and so she went to go about her business. However, she said she was then told that she was also barred.
3.4. The complainant said that the reason she did not object to being barred at the time of this incident was because she did not want to make a bad situation worse. She said that she thought that if she went back, the respondent wouldn't accept her word. She suggested that there might have been a case of mistaken identity as she often gets confused with her sister. She agreed that her family did things "they shouldn't be doing" but said she was followed around because of what her family did and, on this occasion, she said she was clearly being asked to leave the store because of her association with them.
3.5. The complainant said that the respondent had taken a "blanket approach" to dealing with her family and, as a result, Travellers. In that respect, she pointed out that the majority of the people barred were Travellers and said that there was an inconsistency in the evidence in that respect, in particular in relation to the respondent's policy on barring people or asking someone to leave. She submitted that a non-Traveller would not be asked to leave because of the company they kept. In this respect, she also reiterated the point that she was being followed around and watched.
3.6. The complainant said that, following the incident in June, fair procedures were not applied to her situation and an arbitrary decision was made to ask the complainant to leave the store if she came back to it again. She added that this decision was made without reference to her previous good record which, she submitted, should not be disregarded by any reasonable person.
3.7. The complainant said there was no effort by the respondent to engage with her in July about her being asked to leave and she should have been spoken to privately away from the store floor, as would have happened if there was an incident in which a member of the respondent's staff had behaved inappropriately. Instead, she stated that she was forcibly removed from the shop.
3.8. In relation to the respondent's submissions with regard to the application of Section 15(1) of the Acts to the present case (see par. 4.17 and 4.18 below), the complainant submitted that there was no record of criminal activity and she did not act in a violent or threatening manner. In any event, she said that the triggering of the application of this provision must be based on the opinion of someone. She said that the respondent did not have the requisite knowledge to validly form the kind of opinion that would allow it to rely on the provision in question and so could not avail of it.
3.9. The complainant stated that the reaction of the respondent to her demonstrated its prejudice against her. She said that her treatment in relation to the incident in June had tarnished her reputation when she was not involved in this incident. She described the level of upset, humiliation and inconvenience she has suffered as a result of the respondent's treatment of her. She said she just wants to be treated equally to other members of the public. Instead, she said she was discriminated against because she was a Traveller.
3.10. The complainant withdrew a claim of victimisation at the hearing.
4. Summary of the Respondent's Case
4.1. The respondent agreed that it had refused to serve the complainant in its store in Castlebar in July 2009. However, it submitted that this was because members of its staff witnessed the complainant behaving in an anti-social manner within the store in June 2009, and Ms A, the Manager involved in this incident, gave evidence in this respect (see pars. 4.2 and 4.3 below). It submitted that it is normal practice for it to ban from its premises any individual acting in such a manner as part of its duty of care towards its employees and other customers. It also submitted that the statement of the complainant that she accepts "becoming upset" is a tacit acknowledgement that she behaved in an abusive manner towards the respondent's staff. It emphatically denied that the complainant was forcibly removed from the store.
Evidence of Ms A
4.2. Ms A, who was present at the second hearing, said that she was the Ladies Wear Manager in the store and was familiar with the complainant as a customer prior to June, 2009. She said that, on a particular day in June, she was called to the Children's Wear Department as there was someone in the store who was not welcome there. She said she saw the complainant, Ms C and Ms D, along with a child. She said she approached Ms C and Ms D and told them they had to leave the store as they had previously displayed aggressive behaviour to staff of the store. She said that she directed her comments clearly at Ms C and Ms D and not the complainant. She said that, at this, the complainant joined Ms C and Ms D in shouting at her and saying "get the f***" away from me and "why the f*** am I not welcome here". She said that this was all said in an aggressive, "shouty" manner and that she felt intimidated by it.
4.3. Ms A said she then followed them around the store asking them to leave but said they continued to behave aggressively towards her. She said that, initially, it was just Ms C and Ms D displaying this behaviour but that the complainant then joined in as well, so she asked her to leave also. She said that, while there were no other staff members on the floor with her, customers were moving away because of the behaviour in question and she gave further evidence of that behaviour. She said that, once the three individuals concerned had left, she reported the matter to the Store Manager. She agreed that this behaviour was out of character for the complainant but that she behaved in the manner described nonetheless. She said that there was a follow-up meeting within a day of this incident at which she attended along with a number of Managers, including Ms B, and at which she gave full details of the incident in question.
4.4. In relation to the incident in July, Ms A said that she was at the front of her own Ladies Wear Department when she saw the complainant entering the Children's Wear Department. She said that, although the complainant had been acting in a normal manner at that point, she approached her and told her, in a very calm manner, that she was not welcome to shop in the store anymore. She stated that she told the complainant that the reason why this was the case was because of her behaviour in relation to the aforementioned incident in June. She said that the complainant immediately became aggressive and started shouting at her and using abusive language while doing so, saying that she was being discriminated against because she was a Traveller.
4.5. Feeling intimidated by this, Ms A said she wanted someone else with her and called for Ms B, who duly arrived and also spoke to the complainant calmly saying that she was no longer welcome in the store. She said that the complainant said she was going to ring the Gardai. She said the complainant took her phone out to rang someone but she never saw the Gardai. She said that she and Ms B followed the complainant until she had left the premises. She denied she ever made physical contact with the complainant.
4.6. Ms A said that she did not try to sit down with the complainant and discuss the matter with her as a decision had been made to ask her to leave and that decision was based on the previous incident. She said that she had asked someone who was not a Traveller to leave on a previous occasion and described the relevant incident. She stated that once the respondent asks anyone to leave, it does not want them coming back. She agreed that 4 or 5 Travellers had been asked to leave, but only one non-Traveller. She said that all the Travellers concerned were members of the complainant's family.
4.7. Ms A said that, subsequent to this incident, the complainant did try to come back to the store, but she did not let her in. She denied that the respondent had a policy of following the complainant. She also denied that she, or anyone else, ever told the complainant she was not welcome because of the company she kept. She said that everyone is responsible for their own actions and the complainant's behaviour in June was inappropriate. She said staff and customers felt intimidated by it and the respondent was concerned that the complainant would display this behaviour again.
Evidence of Ms B
4.8. Ms B was present at the first hearing. She said, in relation to the incident in July 2009, that she was called down from her office to the store floor. She said that when she arrived, she understood that Ms A had already asked the complainant to leave because of the previous incident in June. She said she heard the complainant say that she was being asked to leave because she was a Traveller and that she would phone her solicitor. She said she proceeded to make a phone call. She said that, having finished this call, the complainant was again asked to leave but refused to do so. However, she said the complainant eventually did leave.
4.9. Ms B said that she did not specifically hear Ms A mention the previous incident to the complainant. She said that at no stage did Ms A touch the complainant. She said that the complainant was barred because of the report of Ms A into the June incident as her behaviour in relation to that incident was considered inappropriate. She said that anyone would have asked her to leave in the same circumstances.
4.10. Ms B stated that it was the respondent's policy that customers should be allowed to shop in a non-threatening atmosphere. She also gave evidence in relation to the non-Traveller who had been asked to leave the store. She said that if any customer was loud or aggressive they would be asked to leave. She said that being asked to leave was not being barred, that there was a difference and that barring involved an extra step but later withdrew this statement, saying that if someone was asked to leave, then they were barred.
4.11. Ms B said that, in relation to staff acting inappropriately, they would be taken to an office and spoken to. She said that she did take the complainant to a quiet area to discuss the matter because she was not listening to what she was saying. She categorically denied the complainant was being treated differently because she was a Traveller. She said that if the respondent was discriminating against the complainant, then it would have stopped her coming to the shop earlier and she denied that the complainant was being followed around.
Further arguments
4.12. The respondent denied that the alleged comment regarding the complainant being banned "because of the company she kept" was ever made. It outlined why, due to distinct physical differences, the complainant could not have been confused with her sister. It submitted that the complainant was not targeted as part of a blanket approach to Travellers who enter the store (as no such approach exists). In that respect, it submitted that the complainant accepted that prior to the incidents in question she was able to shop in the store on many occasions without incident.
4.13. The respondent stated that the complainant was asked to leave the store in July 2009 because of her previous inappropriate behaviour and that others were asked to leave the store in similar circumstances and asked not to return. It outlined inconsistencies in the complainants evidence which, it said, went to the complainant's credibility. It said her evidence was also incoherent. It submitted that the burden of proof was on the complainant to prove that she was discriminated against because she was a Traveller. It said she had failed to discharge that burden as she had failed to adduce any evidence to suggest that the reason for her being asked to leave and her subsequent banning was anything to do with her Traveller background. It submitted case law for the Tribunal to consider in that respect.
4.14. However, the respondent submitted that if the Tribunal found that the complainant had established a prima facie case, it considered it had more than discharged its burden of proof as it gave evidence of its cogent policy that led to the complainant being asked to leave the store. It also said that, even if a case of discrimination had been made out, it was entitled to avail of the defence in s.15(1). (This section relates to a particular set of circumstances where a service provider forms a belief that the provision of the service to a particular customer would produce a substantial risk of criminal or disorderly conduct.)
4.15. The respondent submitted that Ms A had given clear evidence that the behaviour of the complainant was of the disorderly kind and occurred on two occasions, and that it was considered she would display this behaviour again. It accepted that s. 15(1) placed a heavy onus on it in order to avail of it, but considered that the onus had been met. In that respect, it said that there was fear from staff and customers of the respondent in relation to the complainant and that these fears or concerns must weigh heavily on any Manager with regard to staff working under their supervision. It said that Ms A displayed these concerns frankly and that this would trigger the application of s.15(1). It also pointed to case law in that respect.
4.16. In short, the respondent denied that there was discrimination against the complainant, or discrimination against her by association as a member of the Traveller community.
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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. It is not disputed that the complainant was asked to leave the respondent's premises on 22nd July, 2009. While the actual description of the events provided by both sides is disputed, and the complainant submits that other things were said by the respondent, it is also accepted by both sides that the complainant was told that the reason she was being asked to leave then was because of the previous incident in June, 2009. It is clear, then, that this case turns, not on the incident in July, 2009, but on the incident in June 2009. For if the treatment of the complainant on that day was discrimination on the Traveller ground, then the decision in July, 2009 to ask her to leave was also discrimination on the Traveller ground as it was based on that earlier treatment. Given that the parties account of the events in question are totally contradictory, it is critical for me to make a determination as to what actually took place in June, 2009.
5.3. In coming to my conclusions in this respect, I have weighed up the evidence of both the complainant and Ms A and found that of Ms A to be more consistent and more credible. In particular, if the complainant's version of events was the correct one, and her reputation was "tarnished" in relation to this incident to the extent that she claims, I find it difficult to understand how she would not have sought to correct the injustice she felt she suffered before returning to the shop a month later, and why she did not raise it with the respondent in the meantime, particularly when she relied on it for her clothing purchases to the extent that she did. Furthermore, it is not contested that she was being asked to leave in June and so she cannot have been surprised when she was asked to leave in July by Ms A. Her reaction on that day was not consistent with this fact.
5.4. Therefore, I am satisfied that Ms A approached Ms C and Ms D and told them that they were not welcome to shop at the complainant's premises. It should be said, however, that although Ms A did not intend to direct these remarks at the complainant, I am satisfied that the complainant genuinely understood that she was being asked to leave as well. Therefore, she joined Ms C and Ms D in shouting at Ms A and acting in an aggressive manner towards her. I can understand her being upset as she clearly thought she was being told to leave the premises, although her reaction was extreme to say the least, but I am satisfied that this was a misunderstanding on her part of what Ms A was saying.
5.5. Ms A could, and perhaps should, have been more careful in assuring the complainant in this respect. However, the crucial point is that, initially at least, the complainant was not being asked to leave the store and so it is clear that the behaviour she displayed after she thought she was being asked to leave the store was what led her to actually being asked to leave. I am satisfied that, in the same or similar circumstances, Ms A would have treated anyone in the same way. In that respect, the complainant's treatment was not related to her membership of the Traveller community.
5.6. Two questions remain for me to consider, however, as the complainant submits that, irrespective of whether she behaved in June 2009 in the way Ms A described, if the complainant had not been a Traveller, the respondent would a) not have made the decision to ask the complainant to leave the next time she entered the store and b) have approached her differently before it asked her to leave in July, 2009.
5.7. In relation to a), the complainant contends that a non-Traveller who acted in the same fashion as the complainant did in June would not have been barred outright. She submits that Ms B indicated that the one non-Traveller who had been asked to leave was allowed to return. I accept that Ms B's evidence was unconvincing and contradictory in this respect, but Ms A was clear in stating that this comparator was not allowed to return to the store and, on balance, I accept this evidence. Furthermore, and in any event, it seems perfectly reasonable to me for the respondent to say that the behaviour displayed by the complainant warranted being asked to leave any time she visits the store, irrespective of her status as a Traveller.
5.8. The complainant also submitted that the fact that only one of the four people who have been refused entry to the respondent's store was not a Traveller indicates that the respondent has a propensity to be more inclined to ask Travellers to leave its premises. On the other hand, the respondent submits that the fact that a non-Traveller was asked to leave is proof that it does not just ask Travellers to leave the store. Either way, I am not satisfied that this fact stands alone as sufficient evidence for me to draw the suggested conclusions. The complainant also presents, in support of her evidence in this respect, that she was followed around by members of the respondent's staff and that this happened because she was a Traveller, an allegation the respondent denies. On balance, I find the respondent's evidence to be more credible in this respect and that the complainant was not followed around the respondent's store.
5.9. The complainant also submits that her previous good behaviour should have been taken into account and fair procedures applied to the decision not to allow her return to the premises. In referring to fair procedures and affording the complainant a hearing, the complainant seeks to impose responsibilities on the respondent vis-à-vis its customers akin to the relationship between an employer and an employee. I am not aware of anything in the Acts, or of any relevant case law, that imposes such an obligation. Instead, it seems to me that, once the respondent did not apply different procedures to the complainant as a customer than it might have to a different customer, then there can be no issue in relation to less favourable treatment on that basis.
5.10. In any event, I consider that the respondent was acting consistently in this respect, and that any behaviour of the type displayed by the complainant would have led to a person not being allowed come back to the store irrespective of their previous behaviour or, more importantly, their status as a Traveller or non-Traveller. In all the circumstances of the present case, then, I do not consider that the complainant has established facts of sufficient significance that would indicate that the respondent was more inclined to refuse her entry to its premises because she was a Traveller.
5.11. In relation to b) above, I am satisfied that the complainant's behaviour in June, 2009 would not have been tolerated by the respondent in any circumstances and irrespective of her status as a Traveller. In that respect, while it might have been better for Ms A to have tried to have a quiet word with the complainant rather than ask her to leave outright, I do not consider that the complainant would have been treated any differently if she had not been a Traveller. It was the complainant's behaviour on her previous visit that was at issue in her being asked to leave on this occasion, not her status as a Traveller and/or her connection with Ms C and Ms D. In that respect, I would add that I also find, on balance, that the complainant was not told by the respondent that she was being asked to leave because of the company she kept, as alleged.
5.12. As there are no further aspects to the complainant's case, I find that she has failed to establish a prima facie case of discrimination and I do not need to consider the matter any further, in particular the issue of the application of Section 15(1) to the present case. Therefore, the complainant's case fails.
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 the complainant has failed to establish a prima facie case of discrimination on the Traveller ground in terms of Sections 3(1)(a) , 3(2)(i) and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
11th January 2011