Complainant

Respondent

Anonymised Parties

Mr. and Mrs. A and their 7 children

A Playcentre

Representatives

Terence F Casey & Co. Solicitors

Thomas J O’Halloran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023683-001

03/12/2018

This complainant submitted this complaint on the 3rd of December 2018.   The claim is taken on grounds of membership of the traveller community and relates to an allegation that the complainant’s family (Mr. and Mrs. A and their seven children) were refused access to the respondents playcentre on 22nd of August 2018.   This is one of nine separate complaints taken by the complainant family in respect of this incident.   Two complaints are taken by the parents Mr. and Mrs. A and the other seven complaints are being pursued on behalf of Mr. and Mrs A’s seven children.I have exercised my discretion to anonymise this decision due to the involvement of minors.

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 cases to me Orla Jones, an Adjudication/Equality Officer, 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. Written submissions were received. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 21st of February 2019.

The complainants submit that

they were refused access to the respondents playcentre on 22nd of August 2018 due to the fact that they are members of the traveller community.

The respondent submits that

three of the complainants, the eldest child B and two younger children were granted entry to the playcentre ahead of Mr. and Mrs. A’s arrival as B alleged that they had been inside the play centre already and that their mother was inside (this transpired not to be true as they had not been inside already),

when Mrs. A arrived at the desk she indicated an intention to pay only for the children who accompanied her when she entered the premises, Mrs. A failed to alert the respondent to the fact that three of her children had gone in ahead of her and had yet to be paid for.

The issue for decision by me now is, whether or not the respondent discriminated against the complainants on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015. 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.

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(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”),

5Section 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.

Discrimination on grounds of membership of the Traveller Community  

In making my decision I must consider whether the existence of a prima facie case has been established by the complainants. 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.

The first complainant Mrs. A advised the hearing that she and her husband Mr. A along with their seven children attended the respondents playcentre on 22nd of August 2018. She stated that their eldest child B who was sixteen at the time of the hearing left the car with two of the younger children and went in to the respondent premises ahead of the rest of the family.

The first complainant Mrs A told the hearing that she and her husband then went in to the respondents premises a few minutes later with the other four children one of whom was a baby in a car seat and another was a two-year-old. The first complainant Mrs. A told the hearing that she approached the counter where Mr. C the owner stopped her and said, ‘you’ve kids inside already can you go and get them’.

Mrs. A stated that she went in and brought out some of the kids and then asked Mr. C ‘how much is it?’ The complainant Mrs. A told the hearing that Mr. C then told them to get out. Mrs. A stated that she asked why? and that Mr. C replied that her child had ‘told him a lie’ and that he stated that he was not serving her. The complainant Mrs. A told the hearing that the refusal was due to the fact she and her family are members of the travelling community.   The complainant Mrs. A stated that she was giving evidence on her own behalf and on behalf of her seven children including her daughter B who was now sixteen.

Witness for the respondent Ms. C who is a director of the respondent company advised the hearing that she was at the desk when Mrs. A’s daughter B approached the desk with two younger kids.   Ms. C stated that B had approached the desk and stated that her mom was inside already and that she had already been in.      Ms. C told the hearing that she herself had just taken over on the desk while Mr. C had gone to get some change, Ms. C stated that she believed what B had told her and so she buzzed the gate to allow B and the two younger kids to enter the play area. Ms. C stated that Mr. C had come back shortly after that and she had checked with him if B and the two children had been inside already to which he replied ‘no’. Ms. C stated that one of the complainants, B was at this stage sitting in the café and the other two children had gone down to the back of the play area.

Ms. C stated that upon learning that B and the two children had not been inside already she then left Mr. C at the desk and went to look for the two smaller children who were now on their own as B was sitting in the cafe.

Witness for the complainants, B, daughter of Mrs. A told the hearing that she did not say that she had already been inside but that she told them at the desk that her mother was following behind and would be in shortly to pay for them. B stated that she and the younger children were then left in to the play area.

Witness for the respondent Ms. C disagrees with B’s version of events and stated that she would not have admitted B and the two younger kids to the play area unless she had been told that they had already been inside, as prior to entry each parent has to fill in a sign in sheet with their child/childrens name and age details and their own contact details in case they get separated from their children and they also have to the appropriate entry price for each child.   Ms. C added that a child or group of children would not be left in without their parent even if they said that their parent was following behind (as B alleges) as all children in the play area must be supervised by a parent and the appropriate entry fee paid.

Ms. C stated that upon discovering that B and the two younger children had not already been inside she went to find the two younger children whom she was now aware were not being supervised by a parent, Ms. C stated that she found the two children in the back of the play area and told them they had to ‘come back up for Mom’.

Witness for the respondent Mr. C advised the hearing that he was not at the desk when B arrived with the two younger children but that he confirmed to Ms. C on his return to the desk that B and the two children had not previously been inside.   Mr. C stated that he was at the desk when the first complainant Mrs. A approached the desk with two other children. He stated that Mrs. A said to him “how much for him? and she is free” gesturing to the two children she had with her and alluding to the respondent’s policy that ‘under 3’s are free’. Mr. B stated that he then asked Mrs. A “are you sure you are not missing other children?” to which Mrs. A did not reply. Mr. C stated that it was clear to him at this point that Mrs. A was seeking only to pay for the children she had with her at the desk and she made no mention of the fact that three of her children were already inside.     Mr. C stated that he then asked her a second time if Mrs. A was sure that she was not was missing other children to which she then said “yes”, and Mr. C asked her to go and get them.

Mr. C stated that he then buzzed the gate and let Mrs. A in to get the other two children who had been brought up from the play area by Ms. C. Mr. C stated that B continued to sit in the café while all of this was going on and did not acknowledge that her parents or other members of her family were there at the desk and B did not re-join the family for a considerable time.

Mr. C stated that Mrs. A then returned to the desk with the other children at which point Mr. C said to her to “now take them all home and bring them back another day”.

Mr. C told the hearing that he refused to grant the complainant’s entry at this stage due to the fact that Mrs. A on her arrival had failed to admit that she had three other children already inside whom she needed to pay for coupled with the fact that her daughter B had already lied to the respondent stating that she had been inside already, when this was not the case.   Mr. C stated that it was clear that Mrs. A was trying to avoid paying for the other children and that she only admitted that she had other children already inside after Mr. C had put it to her twice that she was missing some of her children.

Mrs. A’s husband Mr. A gave evidence at the hearing and supported Mrs. A’s version of events. Mr. C stated that Mr. A had not come in with Mrs. A but that he had noticed Mr. A a few minutes later crouched down near the desk and tending to a baby in a car seat.   Mr. C stated that Mr. A only addressed him after he had told them to leave and that Mr. A had said to him “what kind of f***ing prick are you?”. Mr. C stated that Mr. A then began to record Mr. C using his mobile phone.

It is submitted that Mr. and Mrs. A and their seven children were refused access by the respondent due to their membership of the traveller community.

Witness for the respondent Mr. C denies this and stated that Mrs. A had “failed the decency test” by not telling him straight away that she had other children inside whom she needed to pay for. He stated that in addition to that, there was the fact that Mrs. A’s daughter B had lied by saying that she had already been inside when she had not, which Mr. C submits was also an attempt to avoid paying for the two children who accompanied her.

It is clear from the evidence adduced that three of the complainant’s children namely the eldest child B and two younger children were not initially refused entry to the play area and that all three were initially buzzed in and admitted to the play area.   It is also evident that B had gone to the café and the two younger children had gone to the play area once they were admitted by the respondent.

The respondent Mr. C stated that there would have been no problem if Mrs. A had willingly disclosed the fact that she already had children inside who had not been paid for, if she had approached him and said she wanted to pay for her children who were already inside, she and her family would have been able to use the facilities without any issue.     Mr. C stated that he took issue with the dishonesty.

Having given the matter a great deal of consideration and in circumstances where three members of the complainant family were initially admitted to the playcentre without issue I am satisfied based on the totality of the evidence adduced in relation to these matters that the complainants were not discriminated against by respondent on grounds of membership of the Traveller community in respect of this matter.

In light of the foregoing, I issue the following decision. I have investigated the above complaint and make the following decision.   I find that

The complainants were not discriminated against by the respondent on grounds of membership of the traveller community in relation to this matter.