Equal Status Acts, 2000 to 2008
Decision DEC-2012-041
Mary O'Donoghue
-v-
Heatons
File Refs: ES/2010/105
Date of Issue: 20/11/2012
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 19 November 2010 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 17th October 2012 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 19th October 2012 and both parties were in attendance.
1. Dispute
The dispute concerns a claim by Mary O'Donoghue that she was discriminated against by Heatons (hereafter "the respondent") on the ground of her status as a member of the Traveller community in terms of Section 3(2)(i) of the Equal Status Acts, 2000-2008. The complainant submits that the respondent asked her to leave their store because she is a member of the Traveller Community.
2.0 Complainant's case
2.1 The complainant is a member of the Traveller Community. She submitted that she was in the respondent store on 4 July 2010 to buy curtains. She was accompanied by her sister-in-law, also a member of the Traveller community, who was living in the area. The complainant did not live in that area and had not been in the store before. The complainant submitted that she cannot read or write; therefore in order to see whether the curtains would be suitable to her needs, she opened the packet to take a closer look at them. She closed the package and returned the curtains to the shelf. A manager approached her and asked her to leave the store. The complainant asked her for a reason, and the manager said that she did not have to give a reason. The complainant asked for the Gardai to be called. The manager left to call the Gardai but came back and said that she could not get through. The complainant asked for the phone and contacted the Gardai on the emergency number. The Gardai told her it was a civil matter and they would have to sort it out themselves. At this point the manager asked her if they could just forget about it and she could come back inside. The complainant refused.
2.2 The complainant stated she was very embarrassed about being brought out of the store by the manager but stated that she did not use bad language or become aggressive. She stated that the manager knew that she was a Traveller and she thought she was going to steal the curtains. She stated that the manager did not ask her to put back the curtains; instead she immediately asked her to leave the shop. She submitted that a settled person would not have been treated in the same way. She also submitted that she had never been in trouble with the law before.
3.0 Case for the respondent
3.1 The respondent store manager submitted that she observed the complainant removing the packaging from an item in the store. She believed that the complainant was removing the soft security tag from inside the packaging, in order to be able to take it from the store without activating the alarms. She submitted that when she approached the complainant and asked her to stop opening the package, the complainant was startled. She submitted that it was only when the complainant became aggressive in response to her request, that she asked her to leave the store. The store manager submitted that she tried to call the local Gardai in response to the complainant's request, but could not get through. The complainant then called the Gardai on the emergency number, which the respondent objected to, as it was not an emergency. The manager stated that she did not offer to drop the issue as the complainant submitted.
3.2 The respondent submitted that she did not know the complainant and could not have distinguished that she was a member of the Traveller community. She submitted that she did not know the complainant was accompanied by her sister-in-law (who was known to her), as they were in separate areas of the store at the time of the incident. The respondent submitted that they have previously had issues with shoplifting by some members of the Traveller community, but in general they were also considered good customers of the store. They submitted that there had been no issue with granting the complainant access to the store and that there was no discrimination because they were simply responding to a security concern.
3.3 The respondent manager submitted that customers in general do not remove products from their packaging, but if they did, she would have reacted in the same way to any customer, who she observed tampering with the packaging.
4.0 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 turns to a great extent on the credibility of the parties. The complainant presented her evidence in a straightforward and truthful manner. On the respondent side, I accept that the store manager had genuine security concerns and that she believed she was acting appropriately in the circumstances. However I find that she over-reacted to the situation and I do not accept that a member of the settled community would have been asked to leave so hastily. I do not accept that any person who opened a package would automatically be assumed to be stealing. I believe that if the complainant had been a member of the settled community, the store manager would have asked to assist her, rather than asked her to leave. The evidence of the store manager was that she felt justified in asking her to leave because the complainant reacted aggressively to her when approached. This was denied by the complainant and no specific evidence of the alleged aggression was proffered by the respondent. Also I note that it was agreed by both sides that there was a security guard close by at the time. Therefore if the complainant had reacted aggressively, I find it highly unlikely that he would not have come forward to support the manager. Therefore I do not accept that she behaved aggressively and that this was the reason she was asked to leave. The complainant has successfully made a prima facie case of discriminatory treatment on the ground of membership of the Traveller community.
4.3 The respondent manager stated that she did not know the complainant was a member of the Traveller community. I accept that the complainant was not personally known to her and she therefore did not know it as a matter of fact. However the complainant initially entered the store accompanied by her sister-in-law, also a member of the Traveller community, who was known to the store manager. Based on this fact and the manager's contact with the complainant, I find that the store manager did at least assume she was a member of the Traveller community.
4.4 The complainant has successfully made a prima facie case that she, as a member of the Traveller community, was treated less favourably than a settled person would have been treated in similar circumstances.
5.0 Decision
5.1 I find that the complainant has raised a prima facie case of discrimination which has not been rebutted by the respondent. The complainant therefore succeeds and I award her 1,000 Euros in compensation for the upset and humiliation suffered.
_______________
Elaine Cassidy,
Equality Officer
20/11/2012