Equal Status Acts, 2000 to 2011
Decision DEC-S2012-018
Ms Mary Doyle
(represented by Ray Ryan BL, instructed by Keith Walsh Solicitors)
-v-
Dalco Restaurants Ltd t/a MacDonalds Restaurant
(represented by Corrigan and Corrigan Solicitors)
File Refs: ES/2011/063
Date of Issue: 14/05/2012
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(i), Traveller ground -discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 8 April 2011 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 2nd February 2012 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 29th February 2012 and both parties were in attendance.
Dispute
The dispute concerns a claim by Ms Mary Doyle that she was discriminated against by Dalco Restaurants Ltd t/a MacDonalds (hereafter "the respondent") on the grounds of her status as a member of the Traveller community in terms of Section 3(2)(i) of the Equal Status Acts, 2000-2011. The complainant submits that the respondent refused to serve her because she is a member of the Traveller Community.
Complainant's case
2.1 The complainant is a member of the Traveller community. She visited the respondent restaurant on 11th November 2010 to purchase food for herself and her sister-in-law who was waiting outside. She was accompanied by her daughter-in-law, Ms A and grandchild, also members of the Traveller community. The complainant ordered food and the attendant began to serve her. He then realised she was accompanied by Ms A and refused to serve her. The complainant asked him why and she was told that it was because Ms A was barred. The complainant asked to be served in her own right but the staff member refused. He asked her to step aside. The staff member said that she could not be served in Ms A's company. She asked to speak to the manager. When the manager arrived, he cursed and was rude to her and threatened to get the police. She said she would wait for the police to arrive. The security guard arrived and the manager told him that he had refused service to the complainant and she needed to leave. The complainant said she would sue him. She went outside and met her sister-in-law and told her how upset she was. The complainant submitted that she had not been back to the restaurant since then and is too embarrassed to shop in the centre.
2.2 The complainant's sister in law gave evidence that she had been in the restaurant a few times before. On this occasion, she had given the complainant money for food and she waited outside for her. When the complainant came out, she was in a panic, shaking and crying. She told her that the restaurant refused to serve her and she did not know why.
2.3 The complainant's daughter-in-law, Ms A, gave evidence that she often visited the restaurant; however there had been an incident a few weeks previously and she was barred after that. Regarding the incident in question, she submitted that she was given the wrong meal and had words with the staff member about it. This resulted in her being barred, which she found unfair. She accepted that she had already been barred form the entire shopping centre, but said that this was nothing to do with McDonalds. She stated that the staff know her well and they call her names. On the day of this complaint, Ms A entered the restaurant with her mother-in-law, but went to a different till, with the intention of talking to the manager about why she was barred. She saw her mother-in-law being refused service by the staff member and by the manager. She submitted that it was embarrassing for her mother-in-law and she was crying.
2.4 Counsel for the complainant submitted that a prima facie case had been established because the complainant had been refused service and she is a member of the Traveller community. It was therefore for the respondent to disprove. He submitted that it was entirely incredible that the respondent staff claimed they did not know that the complainant was a member of the Traveller community and that this statement undermined their credibility on all other points.
Case for the respondent
3.1 The respondent stated that an incident occurred between the claimant and its staff on 8th November 2010 and not the date given by the complainant. The respondent stated that all of its evidence could be verified by their CCTV footage which was submitted to the Tribunal.
3.2 The respondent submitted that the complainant and Ms A entered the restaurant together and approached the counter. The crew member on duty immediately recognised Ms A and said that she had been barred 2 weeks earlier and therefore would not be served. He said that she would have to leave the restaurant, but that he would serve the complainant. The complainant became loud and abusive towards the crew member. The manager heard the shouting and went to investigate. He also recognised Ms A, as having been barred from both McDonalds and the entire Shopping Centre. The store manager offered to take the complainant's order, but said that Ms A would have to leave. The complainant refused to place an order and stated instead that she would call the Gardai to complain. The manager asked her to step aside while she was making the call, because he had to serve other customers. The complainant made the call and told the Gardai she was being refused service. The manager advised her that Ms A and not the complainant was being refused service. The manager called Security and they arrived a few minutes later. The complainant and Ms A left with them. The respondent submitted that the complainant was not crying at any time during the incident.
3.3 The crew member who had been on duty at the time of the incident gave evidence at the hearing. He did not know complainant but was familiar with her daughter -in-law, who had been a regular customer until a few weeks previously. He described the incident which resulted in her being barred. He stated that Ms A had a dispute with the day manager and then she went on to threaten one of his female colleagues; specifically Ms A said that she would watch out for the employee leaving work and beat her up when she got her. After this happened he found out from the shopping centre security team that Ms A was barred from the whole centre. On the day in question, he realised immediately that the complainant was with Ms A at the restaurant, and he refused to serve Ms A. His manager came out to see what was going on and he left the manager dealing with the issue, while he served the other customers. He stated that the manager did offer to serve the complainant. He stated that (as a non-national), he did not know the complainant was a member of the Traveller community.
3.4 The store manager also gave evidence at the hearing. He stated that he had never met the complainant before and did not know that she was a member of the Traveller community. He did not recognise Ms A either, but he had heard the full story of her threats against his colleague. He had been told that on the day of the "barring incident", Ms A requested food which she had not paid for and when his colleague refused, Ms A said she would find out where she lived and beat her up. On the day of the incident which is the subject of this complaint, he came out to the front because he heard shouting. When the crew member told him who Ms A was, he also refused to serve her and told her she was not welcome in the restaurant, although he offered to serve the complainant several times. Eventually he called Security and asked them to escort the complainant and her daughter-in-law away.
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 38(A) of the Equal Status Acts, 2000 to 2008 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. 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.
4.2 This is a case which primarily turns upon the credibility of the parties involved. It was clear to me that the complainant was genuinely embarrassed and upset by the incident. However her recall of the events was not very precise and her eye witness Ms A was not credible.
4.3 I watched the CCTV footage a number of times and it did not lend much support to either side, as it was silent. However it did appear that there was a tray placed in front of the complainant at all times and it was moved to the side, when the complainant herself moved to the side. This supports the respondent's contention, that they did offer to serve her and only refused her daughter-in-law. (I further note that the both the complainant and her sister-in-law had been served in the restaurant before and Ms A was considered a regular customer, prior to the incident. This does not support a contention that the respondent generally discriminated against members of the Traveller community.)
4.4 On the respondent side, I find it completely unconvincing that the respondent staff, in particular the Irish store manager, who had worked there since 1999, did not know that the complainant was a member of the Traveller community. This casts doubt over the reliability of his evidence. However his staff member's evidence was clear and consistent. I further note that this staff member has left the respondent's employment in the interim and I find that this adds credibility to his evidence. The staff member appeared to be genuinely shocked by Ms A's threats against his colleague and I accept that the incident with Ms A did happen as he described it and that it was unrelated to Ms A's membership of the Traveller community. It follows therefore that I accept that her being barred, was unrelated to her status under the Equal Status Acts and that the actions which flowed from it, were also untainted by discrimination. Counsel for the complainant has claimed that membership of the protected ground and refusal of service were sufficient to make out a prima facie case of discrimination and in these specific circumstances I agree. However the respondent has shown that the different treatment afforded to the complainant and her daughter-in-law were a direct result of the daughter-in-law's own previous behaviour two weeks earlier. As noted above, I also accept that the respondent did in fact offer to serve the complainant herself, so there was no actual refusal of service.
Decision
5.1 I find that the complainant has raised a prima facie case of discrimination but this has been rebutted by the respondent. The complainant's case therefore fails.
_______________
Elaine Cassidy,
Equality Officer
14/05/2012