Complainant

Respondent

Parties

Noreen Donoghue

M & G Phoenix Retail Limited Trading As Centra

Complainant

Respondent

Representatives

John Smith B.L. instructed by Jeremy Ring & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00017723-001

01/03/2018

The complainant is claiming that she was discriminated against on the Traveller Community in relation to access to a service contrary to the Equal Status Act 2000.

The complainant said that she is a member of the Traveller Community and a regular customer of the respondent’s shop. On the 29th of December 2017, the complainant went to the respondent’s grocery store with her three children for the purposes of buying food which they intended to consume in the sit down eating area of the shop. She said that as soon as she entered the shop, she noticed that she was being followed by a member of the staff. She went to the deli counter and ordered her rolls with fillings of their choice. She was informed by staff at the deli that the drinks were free with the rolls. During this time, she said that the staff member continued to watch her and one of her children also noticed that they were being watched.

She than approached the till to pay and the same staff member as had been watching them was on the till. The bill came to €14 and she thought it was a bit too much and she mentioned to the staff member that the drinks were free and requested a receipt. She said that he said to her ‘I can’t help you if you cannot read or write and that you cannot make it up.’ She handed in a €50 note and again requested a receipt. She said that she got back her change but no receipt. She wanted the receipt so that she could check it when she sat down to eat. She said that she felt very embarrassed by the comment. She asked to see the manager and she was told she was on the phone. She asked for her money back and he handed her back the €50 and asked her to ‘get out of here.’

The complainant waited for the manager and when she came out she explained what happened. The manager asked if she would like her to serve her. Before she had an opportunity to reply she saw the staff member taking the rolls from the counter and taking them back down towards the deli and as he did one of the rolls fell on the floor and he kicked it down the shop to the deli and threw all the rolls in the bin. The complainant said that she was upset that the rolls were now in the bin as she had them specially made up and intended purchasing them to consume in the sit down area. The manager did not intervene to stop him. She said that she left the shop and went to her solicitor.

The complainant said that she has no doubt that the staff member knew she is a member of the Traveller Community. She said that she was very upset at the accusation that she could not read or write or add up as she has gone to college and runs her own successful transport business.

A solicitor gave evidence that the complainant telephoned him shortly after she had been to the respondent’s shop on the 29th of December 2017 and related the incident to him. After getting advice from counsel, he wrote to the respondent on the 4th of January 2018 referring to the incident in the shop and requesting retention of the CCTV footage. He got no response and he wrote a longer letter on the 15th of January outlining the incident in detail and requesting a copy of the relevant CCTV footage of the incident. There was no response to this letter either. Form ES 1 together with a letter dated the 8th of February 2018, again seeking a copy of the CCTV was served on the respondent and there was no response.   The solicitor then referred the complaint to the WRC.

The respondent denies that the complainant was discriminated against on any basis whatsoever. It was not mentioned at any stage during her interactions with the staff that she was a member of the Traveller Community. All the staff are trained to observe customers particularly non-regular customers, couples/individuals accompanied by children. The respondent said that he spoke to the staff member who served the complainant at the till and he was informed that the complainant was very forceful in asserting that the drinks were free. It was denied that the complainant asked for a receipt or that there were any comments made to her about her reading or adding skills. It was further denied that any of the rolls that the complainant was seeking to purchase fell on the floor or that the staff member kicked it down the floor to the deli.

The respondent said that there are 2 housing estates for Travellers near his shop and they are served regularly in his shop. He regularly engages with the Traveller community to try and resolve any anti-social behaviour in his shop engaged in by any of their members.

The respondent said that he did not receive the letter of the 4th January 2018 and he could not remember receiving the letter of the 15th January 2018 seeking retention of the CCTV. He received the letter dated the 8th of February but the CCTV had already been destroyed as it is only retained for 21 days.  

The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have considered all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:

"On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated has been or would be treated in a comparable situation on any of the grounds specified….”

Section 3(2)(i) provides that: “as between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not (the ''Traveller community ground''),"

and Section

5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".

The burden of proof is set out in Section 38A provides:

38A. -- (1)" 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."

A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.

The complainant submits that she was discriminated against on the Traveller community ground when she was attempting to purchase food for herself and her 3 children in the respondent’s shop. The complainant submits that the shop assistant knew that they were members of the Traveller Community having followed them around the shop and hearing them speaking. It was submitted that the words spoken to the complainant at the till in relation to her reading, writing and ability were indicative of one of the common prejudices against Travellers, which is that without exception they have a low educational attainment. In addition, I was asked to draw inferences under section 26 of the Act because of the failure of the respondent to preserve the CCTV despite 3 letters from the complainant’s solicitor requesting its retention.   Section 26 provides:

“—If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission—

(a) that the respondent did not reply to a notification under section 21(2)(a) or

to any question asked by the complainant under section 21(2)(b),

(b) that the information supplied by the respondent in response to the notification

or any such question was false or misleading, or

(c) that the information supplied in response to any such question was not such

as would assist the complainant in deciding whether to refer the case to the

Director of the Workplace Relations Commission,

the Director of the Workplace Relations Commission may draw such inferences,

if any, as seem appropriate from the failure to reply or, as the case may be, the supply

of information as mentioned in paragraph (b) or (c).”

The respondent denies that the complainant was subject to discriminatory treatment on the Traveller Community ground. The staff are required to watch all non-regular customers including adults accompanied by children and it was the complainant who caused the dispute at the till.

I am satisfied that the complainant is a Traveller and is covered by the Equal Status Acts. The next matter for consideration is whether the treatment on the day in question was discriminatory treatment contrary to Section 5(1). I note that the complainant said in evidence that she contacted her solicitor on the day of the incident. Likewise, I note that the complainant's solicitor who gave evidence verified that the complainant telephoned him on the 29th of December and sought advice from him about the incident and that he wrote to the respondent about the incident seeking the retention of the CCTV. I found the evidence presented by the complainant and her witness very credible. I am satisfied that she was watched inappropriately and the comments about her ability to add and read and write were made to her when she queried the price of the food and asked for a receipt. I am satisfied that these words would not have been directed at a non-Traveller customer. I have concluded, therefore, that the complainant has establish a prima facie case of discriminatory treatment.

In rebuttal the respondent, stated that the staff are trained to watch customers who are not regulars, groups of children, teenagers and adults with children. He said that there are Travellers living locally who are known customers of the shop and there is no difficulty in serving them but Traveller children in particular have to be watched. The respondent did not present any direct evidence about the incident. I note that the manager nor the shop assistant who served the complainant, were called as witnesses by the respondent and the CCTV was not retained despite the requests from the complainant’s solicitor. Therefore, I find the respondent has failed to rebut the prima facie case established. I am satisfied that the complainant was treated less favourably that a non-Traveller would have been treated in comparable circumstances.

I find that the complainant was discriminated against on the Traveller community ground contrary to the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the discrimination;

or

(b) an order that a person or persons specified in the order take a course of action which is so specified."

Under the above Section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award, I have taken into consideration the fact that the complainant was a regular customer and the effects of the discrimination had her. I order the respondent to pay to the complainant the sum of €2,000 (two thousand euro) to compensate her for the distress and humiliation experienced by her as well as the loss of the amenity to her.

Equal Status, Traveller community ground, Access to a service.