The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
E-mail: info@equalitytribunal.ie
Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2011-027
Margaret Connors
(Represented by Jones MaGee Solicitors)
V
Mothercare Ireland Limited
Case ref: ES/2009/0045
Issued: 18 July 2011
DECISION NUMBER DEC-S2011- 027 - CASE REFERENCE ES/2010/0045
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Provision of Goods and Services - Traveller community - Vicarious Liability - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Margaret Connors (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 April 2009. The complainant was granted an extension of time to notify the respondent in accordance with section 21(3)(a) on 28 October 2009. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 19 April 2011. An oral hearing, as part of the investigation was held in Dublin on 24 June 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination by the complainant in relation to the provision of goods and services contrary to section 3(2)(i) and section 5(1) of the Equal Status Acts. The complainant maintains that she was refused service and asked to leave by members of staff of Mothercare Ireland Limited (hereafter "the respondent") on 19 November 2009 at approximately 4 pm. The complainant submitted that because she was given no reason to justify this refusal she can only surmise that it was because she, her brother and children are members of the Traveller community.
3. Case for the Complainant
3.1. The complainant stated that she is a member of the Traveller community. She stated in direct evidence that she, in the company of her four young children and her brother, entered the respondent premises in Carrickmines Retail Park in Dublin with a view to purchase a gift for her youngest child. It was her youngest child's first birthday and the party had made their way to the store's section that stocks bicycles at approximately 4 or 5 pm. The complainant stated that while they were looking at the selection she and her group was approached by a male, dressed in casual clothing, who asked the complainant to leave. The complainant asked this man to give her a reason why she should leave and stated that a blond woman in store uniform joined the man and told the complainant that she needed to leave. The complainant further stated that the blond woman said: "we do not need to give you a reason".
3.2. The complainant submitted that she and her party then left the store feeling humiliated. The complainant stated that her eldest daughter (not a party to the proceedings) who was 8 years of age at the time found the matter very upsetting. The complainant submitted that she and her children then made her way to another named store and purchased the gift for her child there. She stated that she experienced no difficulty with the competing provider of goods and services.
3.3. The complainant submitted that she could think of no other reason for the request that they leave the store but for the fact that she, her children and her brother, are members of the Traveller community. She stated that she had never been in this store before and certainly, because of this experience, would never return. She stated that if she had been a non-Traveller she would have been allowed to purchase safety bike for her child.
3.4. It was submitted that the complainant, as a person with poor literacy skills, would have been unable to make her case to this Tribunal without the assistance of a representative. It was also submitted that the complainant was willing to give the same evidence under oath.
4. Case for the Respondent
4.1. The respondent accepted that the complainant is a member of Traveller community on the basis that the complainant herself stated that she was a Traveller.
4.2. The respondent denied that the incident happened at all. It was submitted that the store in question did not have security personnel on the date in question and that no male members of staff were employed at the time. Subsequently, and this occurred three days after the alleged incident, security has been provided in the store and it was submitted that any security personnel deployed by the respondent always wear the company uniform of the security company. It was accepted that the store manager at the material time was a woman with blonde hair and that all respondent employees working on the shop floor wear store uniforms.
4.3. The respondent submitted that it was not in a position to comment on the allegations other than to state that after the respondent became aware of the complaint, it questioned staff at the store in question about the alleged incident and stated that the staff knew nothing about it. It was submitted that CCTV footage was only stored for up to 30 days and as the respondent only learned about the incident in mid January 2009 (when the complainant's representative wrote to the respondent) it was too late to examine whether it could shed light on the facts as alleged by the complainant. The respondent questioned the fact that the complainant has sought legal representation instead of approaching the respondent herself.
4.4. The respondent submitted that it was not in the business of refusing service and asking customers to leave. Any customer is welcome to the respondent store(s).
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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. This is a case where all the facts are in dispute. One party claims that an incident occurred and the other refutes this. In effect, this is a case of deciding which party's account is more compelling. Having considered the facts presented to me, I find that both the complainant and the respondent gave the Tribunal honest accounts of their version of events.
5.3. I find that the complainant was a credible witness whose account of the incident was cogent. She is adamant that she, her brother who she says has an intellectual disability and her four young children, were asked to leave the store while they were selecting a present for her youngest child. The date in question was the complainant's child's 1st birthday. I find that the fact that there were a number of other Travellers in the complainant's company makes it also more likely that she would have been identified as a Traveller.
5.4. While I appreciate the difficulty the respondent submitted it has had in refuting an incident that it says never occurred, I am not satisfied that this complaint has been approached by the respondent with the seriousness that such an allegation warrants. The respondent provided no reports, incident books, etc to the investigation to support its argument that it looked into the matter at all. I note that the respondent stated that it had asked the store manager about the incident but that appears to be the extent of the matter. I do not find such an approach to be sufficient to refute the inference the complainant's direct evidence has established. It is also clear that it is unreasonable to expect that a vulnerable person who has experienced discrimination ought to have some onus on them to return to such a place to discuss the matter with the source of discrimination.
5.5. Having considered the evidence presented to me at the hearing I find on the balance of probabilities, that the incident complained about occurred. The fact that the complainant identified a person who was in a store uniform as the source of the refusal is sufficient to give rise to an inference of vicarious liability in accordance with section 42(1). The respondent gave oral evidence that no male person was working in the store at the material time. I was however provided with no information about the respondent's overall employee situation. I find that there is a possibility that the respondent's non- floor employees visit regional stores and am not satisfied that such an option has been investigated by the respondent.
5.6. I am mindful that this incident involved 4 young children and while I note that they were not included as co-complainants in this matter I am satisfied that the very purpose of these Acts is to ensure that individual complainants who belongs to protected groups, such as Travellers, are entitled to avail of goods and services, education and accommodation in as favourable manner as members of the settled community do. This means that there is an onus on providers of goods and services to justify any refusal to engage with a person belonging to such a group by relying on activities that are not discrimination within the meaning of the Acts. Providers of goods and services must ensure that all of its employees are made aware that it is not lawful to refuse service simply because a person is viewed to belong to a social group.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of discrimination contrary to sections 3(2)(i) and 5(2) of the Equal Status Acts. The respondent has not rebutted this. Therefore, I find in favour of the complainant and in accordance with section 27A award her €1500 in compensation for the effects of the discrimination.
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Tara Coogan
Equality Officer
18 July 2011