EQUAL STATUS ACTS
DECISION NO. DEC-S2016-061
PARTIES
Mr. Edward Connors
-v-
Grafton Group plc
(Represented by Arthur Cox, Solicitors)
FILE NO: et-149216-es-14
Date of issue: 13th of October, 2016
1. Dispute
This dispute involves a claim on behalf of the complainant
that he was discriminated against and harassed by the respondent, on grounds of membership of the Traveller Community when he was asked to leave a shop upon entering the premises. There is also a claim of discrimination by association and of victimisation.
Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 6th of October, 2014. It is submitted that the complainant and a companion visited the respondent’s premises at Woodies DIY to purchase some paint on 19th of June, 2014, when he was asked to leave and told to “get out”, by a member of the respondent’s staff. The complainant submits that he was shouted at and asked to leave due to the fact that he and his companion are members of the Traveller community
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 3rd of June, 2016 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 14th of July, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that that
the complainant and a companion visited the respondent’s premises on 19th of June, 2014 to buy some paint,
the complainant was approached by a member of the respondent’s staff who shouted at him “get out out out”,
the complainant and his companion are members of the Traveller Community,
the complainant left the store without question and then phoned the Gardaí once outside the store,
the complainant had shopped at the store on a number of occasions previous to this without incident.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant visited the respondent’s premises on the date in question accompanied by an individual who had previously been verbally and physically abusive towards the respondent’s staff,
the complainant’s companion was asked to leave the store and became verbally abusive and physically threatening,
the complainant intervened and became verbally abusive,
the complainant was asked to refrain as this was nothing to do with him,
the complainant was not asked to leave,
the complainant was not previously known to the respondent,
the respondent asked a staff member to phone the Gardaí as the complainant’s companion had raised his fist to the respondent’s manager Mr. L and had threatened him,
the respondent was unaware that the complainant was a member of the traveller community.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015 and whether the respondent discriminated against the complainant by association or harassed the complainant on this ground. There is also a claim of victimisation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
Section 3(1)(b) provides for discrimination by association whereby “a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated, is, has been or would be treated in a comparable situation.”
5.3 Section 3(2)(i) provides that: as between any two persons,
(i) that one is a member of the Traveller community and the other either is not (the “Traveller community ground”),
5.4 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.
6. Discrimination on grounds of membership of the Traveller Community
6.1 In making my decision I must consider whether the existence of a prima facie case has been established by the complainant. Section 38A 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. 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, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
6.3 The complainant advised the hearing that he had entered the respondent’s premises on the date in question along with a companion Mr. D. The complainant told the hearing that they were walking in the door when the manager, Mr. L approached them and shouted “get out out out”. The complainant told the hearing that he left the store without questioning Mr. L’s behaviour as the store was busy and he was embarrassed by Mr. L’s actions. The complainant told the hearing that he left the store and once outside, he phoned the Gardaí to tell them what had happened.
6.4 Witness for the respondent, Mr. L advised the hearing that he had worked as a manager for the respondent for ten years and had spent six years in the store in question. Mr. L advised the hearing that he had on the night in question approached the complainant’s companion, Mr. D, and had asked him to leave as Mr. D was known to him as he had on a number of previous occasions been verbally and physically abusive towards Mr. L and other members of the respondent’s staff and so Mr. L did not want him on the premises. Mr. L told the hearing that the complainant had not been asked to leave as he was not known to the respondent and the respondent had no issue or problem with him. Mr. L stated that upon being asked to leave the complainant’s companion, Mr. D, became abusive towards him and started using bad language and threatening him. Mr L stated that Mr. D had raised his fist to him and told him that “the carpark is a dangerous place at night”. Mr. L stated that the complainant had also used bad language and became verbally abusive towards Mr. L but he told the hearing that the complainant had intervened when Mr. D raised his fist and attempted to strike Mr. L.
6.5 The complainant, when questioned stated that his companion had objected to being asked to leave. The complainant when questioned stated that he couldn’t recall intervening between Mr. D and Mr. L. The complainant in his submission had stated that Mr. L had said he was “sick of being treated like dirt on the floor”, Mr. L at the hearing stated that he had made this comment. The complainant at the hearing stated that he could not recall hearing this comment. The complainant also stated that he could not recall Mr. D’s alleged threat to Mr. L regarding the “carpark” but stated that both Mr. L and Mr. D were “fairly hyped up”.
6.6 Witness for the respondent, Mr. L advised the hearing that he had asked the complainant to refrain from using abusive language as this incident was nothing to do with him. Mr. L stated that he had asked a member of staff to call the Gardaí and that the two men had then left the store. Mr. L stated that the complainant’s companion once outside the store, had left in a car which was waiting outside but stated that the complainant had waited outside the store until the Gardaí arrived and that he had spoken to the Gardaí. Mr. L stated that the car later returned with the complainant’s companion and collected the complainant. The complainant advised the hearing that he had spoken to the Gardaí about the incident and that they had told him that it was a civil matter.
6.7 Witness for the respondent, Mr. L, advised the hearing that the complainant was not asked to leave the store and that he was not known to the respondent prior to this night but that the complainant’s companion, Mr. D, who was accompanying him on the night in question, had a history of being aggressive and abusive towards members of the respondent’s staff over the preceding two years and again on the night in question.
6.8 There is a significant conflict of evidence between both sides on the exact events which took place on the night in question. The complainant told the hearing that he did not recall a number of alleged statements and incidents including one comment which was submitted on his original complaint form. I found the respondent’s witness Mr. L to be a cogent and consistent witness and, on the balance of probabilities, I prefer Mr. L’'s recollection of events in relation to this incident. Both parties agree that the complainant was not previously known to Mr. L. The complainant himself told the hearing that he had shopped in the store in question on a number of occasions previous to this occasion and that there had never been any problem or issue with his shopping there. Both parties agree that it was only when the complainant was accompanied by Mr. D that a problem arose.
6.9 I am satisfied from the totality of the evidence adduced that the direction by the respondent to leave the store was in fact aimed at the complainant’s companion, Mr. D, and that the complainant was not discriminated against by the respondent on grounds of membership of the Traveller community in respect of this matter. I am also satisfied from the totality of the evidence adduced that the complainant was not harassed by the respondent on grounds of membership of the Traveller community in respect of this matter.
6.10 For the sake of completeness and as regards the claim of discrimination by association, I am satisfied from the totality of the evidence adduced that the complainant’s companion Mr. D, was asked to leave the premises on the night in question and that this was due to the fact that he was previously known to the respondent as he had previously been engaged in aggressive and threatening behaviour towards staff. I find that the respondent in this regard is entitled to avail of Section 15 (1) of the Acts:
“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]
6.11 I am satisfied that the respondent’s witness, Mr. L is a reasonable person with significant experience of management and that he genuinely believed that Mr. D’s presence was causing a substantial risk of disorderly conduct. I am also satisfied that any person who was known to the respondent in circumstances where they had a history of previous aggressive and threatening behaviour towards the respondent’s staff would have been treated in the same way as Mr. D irrespective of whether or not that person was a member of the traveller community.
6.12 Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not subjected to discrimination by association on grounds of membership of the Traveller community in respect of this matter.
7. Victimisation
7.1 The complainant in his complaint form to the Tribunal indicated that he was victimised. The complainant has not however, adduced any evidence to substantiate the claim of victimisation. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has not adduced any evidence of adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.
8. Decision
8.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.
the complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015,
the complainant was not harassed by the respondent on grounds of membership of the Traveller Community in terms of Section 11 (5) of the Equal Status Acts, 2000-2015.
the complainant was not discriminated against by association on grounds of membership of the Traveller Community by the respondent contrary to section 3 of the Equal Status Acts, 2000-2015,
that the complainant was not victimised by the respondent in terms of Section 3(2) (j) of the Equal Status Acts 2000-2015.
___________________
Orla Jones
Adjudication Officer/Equality Officer
13th of October, 2016