THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-024
Ina McDonagh
(represented by Gilvarry and Associates Solicitors)
-v-
Heatons
(represented by Thomas J. Walsh Solicitors)
File Reference: ES/2011/0038
Date of Issue: 29th June 2011
Key words: Equal Status Acts, Member of Traveller community, Discrimination, Victimisation, No prima facie case
Delegation under the relevant legislation
1.1. This case concerns a complaint by Ms Ina McDonagh that she was discriminated against by Heatons Ltd on the Traveller community ground contrary to 5(1) of the Equal Status Acts 2000 - 2008 [hereinafter referred to as 'the Acts']. She also claims victimisation within the meaning of the Acts. On 30th May 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Acts. On 17th October 2010, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under these Acts, the Director delegated the case to me, Orlaith Mannion, 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 is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 9thth February 2011.
2. Summary of the complainant's case
2.1. Ms McDonagh submits that she tried to enter the shop on 5th November 2008 but she was prevented from doing so by the security guard employed by the respondent. She maintains that she felt embarrassed and insulted. She submits the security guard refused to give an answer as to why she was not allowed to shop in Heatons. Her husband enquired from the Manager as to why she was not even allowed into the shop. They were asked to submit her complaint in writing. Ms McDonagh maintains that the reason was because she was a Traveller and was associated with the bad behaviour of other Travellers.
2.2. Ms McDonagh's legal representative wrote to the respondent on the following day seeking an apology. No response was received. The complainant submits that because of this letter she thought she would be allowed back into the shop but in January 2009 she was refused entry again. Again she maintains this is because she is a Traveller.
2.3. The complainant submits that she feels victimised as Castlebar is a small town and Heatons is one of her favourite shops. Ms McDonagh contends that she is of limited means and Heatons provides good value especially regarding children's clothes.
3. Summary of the respondent's case
3.1 No written submission was received by the respondent. In oral evidence, the respondent's security guard, Mr H said that the complainant was a welcome customer until the 21st March 2008 when he submits that he discovered her taking tags off clothes which she had not yet purchased. Mr H said that he approached Ms McDonagh in a calm way and told her that her permission to shop in the store had been revoked. Mr H stated that 'all hell broke loose then' and she became very abusive. According to Mr H, on 30th October 2008 the complainant and her husband tried again to enter the store again. He allowed the husband in as he was not barred. On entering the store, Mr McDonagh asked to speak to the manager who told him that his wife would have to put her complaint in writing.
3.2 On 4th November 2008, the complainant was refused entry to the store again. Mr H said that she became aggressive and started shouting into the shop. The Gardaí were called on this occasion. Mr H also admits that she was not allowed into the store on 4th January 2009 either. Mr H said that Ms McDonagh was not barred for discriminatory reasons. Mr H stated that he would have acted in the same way if a settled person had behaved in this manner. Mr H submitted that she was barred because she was causing damage to Heatons' property and was obstructing business. He made a report of the various incidents and they were faxed to the Director of Security for the Heatons Group. Mr H has been a security guard for 10 years; he maintains that he would not have retained his position for this length of time if he was not able to judge which situations a customer should be asked to leave and the situations in which they should not.
3.3 The respondent submits it is entitled to avail of the defence in Section 15 (1) of the Acts which allows a service-provider to refuse service where there is a substantial risk of disorderly conduct or damage to property.
4. Conclusions of the Equality Officer
4.1 Section 38A of the Acts sets out the burden of proof:
Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
4.2 There are two issues for me to decide:
(i) Was the complainant discriminated against regarding provision of a service on the Traveller community ground?
(ii) Was the complainant victimised within the meaning of Section 3(2)(h) of the Acts?
Discrimination on the Traveller community ground
4.3 The crucial incident in this case is not the 30th October but the 21st March where Ms McDonagh was initially barred from the store. When cross-examined on this issue, Ms McDonagh did not deny she was barred on 21st March but said that it was for discriminatory reasons. She denies taking the tags off the clothes but said that she was merely trying to tidy up clothes on the rail. There is a significant conflict of evidence between both sides on this issue. I found Mr H to be a cogent witness and, on the balance of probabilities, I prefer his recollection of events in relation to this issue. I find that the respondent is entitled to avail of Section 15 (1) of the Acts:
For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (the ''customer'') in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located. [my emphasis]
I am satisfied that Mr H is a reasonable person with significant experience in the security industry and that he genuinely believed Ms McDonagh's behaviour was causing a substantial risk of disorderly conduct and damage to the property of the respondent. I am satisfied that if an other person engaging in the same behaviour, who was not a member of the Traveller community, would have been treated in the same way.
4.4 There is little disagreement between both sides on the facts of the subsequent incidents. It is common case that on 30th October 2008 Mr McDonagh was allowed into the respondent's department store but the complainant was not. In relation to this incident, the complainant cannot argue discriminatory treatment, as alleged in her ES1 form, because her husband is also a Traveller. It is agreed that the complainant was also refused access to the shop on 4th November and 4th January 2009 and that the Gardaí were called on the first occasion. I find that the respondent continued to believe that the complainant posed a substantial risk of disorderly conduct and/or damage to the property of the respondent and therefore she continued to be refused service. I am satisfied that a person who was not a member of the Traveller community would be treated in a similar way. Therefore, the complainant has failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts.
Victimisation
4.5 Section 3 (2)(j) makes provision for victimisation:
that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'').
Ms McDonagh submits that she feels victimised because she is not allowed to shop in Heatons Department Store. However, the definition of victimisation in these Acts differs from the colloquial meaning. To prove victimisation in the circumstances of this case, Ms McDonagh would have to show that she was treated less favourably as a result of making a complaint of discrimination to the Tribunal or given notice of same to the respondent. Ms McDonagh was barred from the premises before her legal representative gave notice of her intention to make a complaint under the Acts on 6th November 2008 and before her complaint to the Tribunal on 30th March 2009. While the complainant continued to be barred after lodging her claims I am satisfied it is for the reasons outlined in Paragraph 4.3 and 4.4. Therefore, the complainant has failed to establish a link between the respondent's treatment of her and her making a complaint of discrimination under the Acts.
Decision
5. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
(i) I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 5 (1) of the Equal Status Acts.
(ii) I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground
Accordingly, the complainant's case fails.
_______________
Orlaith Mannion
Equality Officer