EQUAL STATUS ACTS 2000 AND 2015
DECISION NO. DEC-S2016-001
PARTIES
Catheriona Drislane
(Represented by John Hussey & Co. Solicitors)
AND
Franklins Restaurant
(Represented by Business & Commercial Solicitors)
File reference: ES/2012/0089
Date of issue: 18th January 2016
1. Background to Claim
1.1 This claim concerns a claim by Catheriona Drislane (hereinafter the “Complainant”) that she was discriminated against by being asked to leave the premises of Franklins Restaurant (hereinafter the “Respondent”) on the grounds of her Family Status contrary to the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”)
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 20th July 2012 under the Acts. In accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing for 10th December 2015. The Complainant and the Respondent attended the hearing along with their representatives.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015.
2. Summary of the Complainant’s case
2.1 The Claimant stated that she was caring for her child who was crying while she waited for her husband to order food at the counter in the restaurant. The complainant stated that the she was approached by a man who asked if there was anything that he could do “for the kid”. She stated that she did not know who he was and that he did not explain who he was. She said she was fine and they were ordering food. He acknowledged that and asked if there was anything he could do in the meantime. She stated that he informed her that it was the company policy to ask the customer to leave if they were causing a disturbance. She asked him was he asking her to leave and he shrugged which she understood to be acknowledgement of yes and she then left. The claimant reported the incident to the Shopping Centre Manager. She claims she was only asked to leave due to her family status ie because she had her child present. The Claimant has alleged that the employee’s failure to identify himself to her was an insult and it was discriminatory also. She confirmed that she had been to the restaurant previously and it was a family friendly restaurant she believed in the past as they would have heated bottles for her children before etc.
3. Summary of the Respondent’s case
3.1 For the Respondent, the restaurant manager stated that he asked her if there was anything thing that he could do for the kid as he was screaming to such an extent that he appeared to be hungry or in pain. The respondent stated that the claimant confirmed her husband was getting food and that she did not need any assistance. The respondent stated that he asked could he do anything in the meantime. The Respondent stated that she said “no just forget it” and she left. He shrugged his shoulders in surprise at her reaction and behaviour and he returned to his work. The respondent presented CCTV footage of the encounter which lasted for 9 seconds. The respondent presented a number of witnesses who confirmed his version of events, however, I have not given weight to their evidence due to their proximity to the incident and the noise in the restaurant at the time it would have been difficult for them to hear what was said during the interaction fully.
4. Conclusions of the Equality Officer
4.1 The Equal Status Acts provides that where two persons are of different family status are treated differently this will constitute unlawful treatment.
4.2 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 and the CCTV.
4.3 The Claimant stated that the manager stated that it was the company policy to ask the customer to leave if they were causing a disturbance. She asked him was he asking her to leave and he shrugged which she understood to be acknowledgement of yes and she then left. He did not specifically ask her to leave because she had a child with her. This request to leave is disputed by the respondent however even if this occurred, she was not asked to leave because she had a child with her but rather because of the disturbance to other customers. Notwithstanding that I find that there is no evidence to independently corroborate the complainant’s version of what was said during their interaction which occurred over a 9 second period and the company advocates itself a family restaurant and the complainant confirmed they were child and family friendly on other occasions.
5. Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision that the complainant has not established a prima facie case on the ground of family status therefore because the claimant is this case has not reached the necessary burden of proof to confirm her claim is well founded on the grounds of her Family Status contrary to the Equal Status Acts 2000 and 2012.
____________________
Caroline McEnery
Adjudication Officer/Equality Officer