Complainant

Respondent

Parties

Melissa Mongan

Edel Shanley Beauty By The Shannon

Representatives

John Gerard Cullen John Gerard Cullen Solicitors

Colm Conway , Cathal L Flynn & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030869-001

12/09/2019

In her complaint form the following was submitted on behalf of the claimant:

The owner of the respondent’s Beauty Salon sent three text messages to the complainant referring to her as 'Melissa Traveller' on the 30th May 2019, 1st and 2nd June 2019 seeking to arrange an appointment for the complainant. The respondent explained the reference to the complainant as 'Melissa Traveller' by saying that their records had categorised her as a traveller who would be looking therefore for diamonds on her nails and that someone in Beauty by the Shannon had mixed up her surname 'Mongan' with her description as a traveller. The complainant was labelled as a traveller and was prejudicially presumed to require certain nail treatments.

It was submitted that the claimant had been the subject of discriminatory treatment as it was clear that the claimant had been classified as a traveller and consequently required more time for her appointment.

In her direct evidence the claimant stated that when she sought an explanation for being identified as Melissa Traveller in the text message, the respondent told her that because travellers want ‘bling’, she had told the young student who was arranging the appointment that as a traveller I would want ‘bling’. The claimant stated that she did not want ‘bling’. She had wanted a nail repair.

The claimant said that firstly the respondent told the student Ms.C that travellers need extra time. She submitted that it was the respondent who told Ms.C to put her down as a traveller. The claimant said she asked for a letter of apology. The claimant asserted that she was stereotyped as a certain type of customer because of the treatment .The claimant asserted that she told the respondent how upset she was. The claimant said that the respondent should not have to tell anyone anything -the claimant said she went as a client and did not want to be put in a category. When asked under cross examination if the claimant had any previous issues when she had made an appointment, the     claimant replied that it was up to her to decide whether or not she wanted extra time – “she stereotyped me as wanting extra time and I should not have been stereotyped”. The claimant said she did not see the text message until after her nail treatment. The claimant said that every girl was entitled not to be stereotyped whether or not they were from the settled community or Muslim – they were all entitled to what they wanted. She enquired if the respondent categorised clients as Asian? She submitted that the respondent told her employee that the claimant was a member of the travelling community, so give her extra time. The claimant explained that the messages were sent to her partner’s phone.

The claimant’s representative asserted that the respondent’s system categorised girls and segregated them on immaterial matters. It was submitted that the respondent’s explanations were unconvincing and had moved from records being kept in a copy book, to being written on sticky things to being put in the bin by the “unfortunate employee”. It was advanced that the respondent categorised clients for nail treatment and gave then 15 minutes extra even though the claimant did not want extra time. No details had been furnished in relation to the appointment that had been made for her and the confusion had “let the cat out of the bag”. It was asserted that you cannot segregate people in an arbitrary manner as had been done by the respondent – this demonstrated prejudice on the grounds that 90% of travellers look for thus. Travellers had been categorised – a place for travellers and a place for everyone else. It was submitted that the respondent thinks like that with respect to clients. It was submitted that the respondent had a system in place for 2.5 years and while reference was made to copy books, sticky books and tapes, the respondent came with empty hands. It was submitted that the segregation of internal records clearly amounted to discriminatory treatment of the claimant. It was argued that the respondent’s actions constituted simple prejudice with a boxed in mentality and that it was unfair to be so categorised. It was asserted that it had caused offence and that the reason for categorisation was irrational.

It was submitted on behalf of the respondent that the salon had many clients who were travellers regardless of their background or nationality. It was denied that there had been discriminatory treatment of the claimant and that if the claimant was upset, this did not amount to discrimination. The claimant was imported onto the system and recorded as a member of the travelling community but this was not enough to accuse the respondent of discrimination because she recorded this fact on her system. The claimant did get the treatment she sought. It was explained that this was an appointments system where a name is entered and an automated text message is issued. The respondent had told Ms.C that some travellers like a little bit extra.

In her direct evidence the respondent stated that she said to Ms.C when the claimant called that “you’ll probably need extra time”. She stated that the system automatically gives 60 mins for an appointment and the salon adds extra time. The respondent said she told Ms.C 90% of travellers need extra time and so give her extra time. The respondent said “I know these girls want a good service“.

When asked under cross examination how it makes it easier if a client is classified as a traveller, the respondent replied “We block off a little bit extra – because a lot of the time they need extra time”. It was put to the respondent that she referred to the fact that the claimant was a traveller and “one of these girls” and she was questioned on how she treated other people when they came in – she replied they are all treated the same and we need to know who’s coming time wise. The respondent said she did not discriminate and that in her experience there was a certain higher standard and that she was just giving them the service they were looking for. She said “they require a little bit extra and they are getting a good service -I am giving them extra time”. When asked about how the traveller reference got on the system, the respondent replied that she told Ms.C that the claimant will probably ned extra time and that some members of the travelling community need extra time. It was based on one conversation. The respondent said that Ms.C made the mistake but it was her business and “I take full responsibility for it”. The respondent said she had this system in place for 2.5 years and that it   records names and contact details – she said “I told the young girl – we are going to need extra time” and Ms.C took the details and recorded the new phone number.

The respondent said she told Ms.C she’s a member of the travelling community and to allocate extra time. The respondent said she did not know what happened or how it happened that Ms.C put “Traveller” into the system. She suggested Ms.C was confused and did not understand the system. The respondent suggested that the complainant’s details were in the system twice and that was how the confusion arose. The respondent asserted that there was no classification of travellers on her appointments system – she said she can go in on the system and make an adjustment for extra time. The respondent stated that there was no charge for the extra time. The respondent advanced that she know s from previous experience with her clients she would know if extra time was needed. She asserted that from her experience 90% of traveller clients require extra time. The respondent referred to using a copy book to record and input the data into the system. The respondent said she would add the additional 15minutes in the evening when reviewing bookings.

The respondent’s representative asserted that the claimant made an appointment, was not refused an opportunity and that the claimant was not discriminated against. He said that Mitchell v the Southern Health Board established 3 principles – the requirement to establish a prima facie case, the complaint must be covered by the grounds set out in the Act and there has to be less favourable treatment than that afforded to another person in similar circumstances. It was submitted that no evidence of less favourable treatment had been presented by the claimant’s side. A fact had been recorded mistakenly and inadvertently, identifying the claimant as a member of the travelling community. It was submitted that the respondent had only been trying to facilitate the claimant – this was not broadcast to the wider world. It was submitted that the recording of the fact that the claimant was a traveller did not amount to discrimination – it was suggested there was no evidence of less favourable treatment. It was submitted that in the event of a prima facie case being established, a client has to give a reason and in this case with her 19 years of experience the respondent had determined that members of the travelling community require extra time. This made no difference to anyone else – it was the respondent’s procedure for running her business and there was no discrimination.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I accept the contention of the claimant’s representative that the respondent’s explanations in relation to the recording of the telephone exchange with the claimant (diary , sticky note , bin) were inconsistent. I note the respondent’s contention that in allocating additional time for clients from the travelling community, no additional charge is imposed on them.

The Act defines discrimination as follows:

I note that there was no dispute between the parties in relation to the fact that the claimant was addressed as Melissa Traveller in the 3 text messages sent to her husband’s phone. Having reviewed the evidence presented   I am satisfied that a client of a   non traveller background would not have been so identified. Accordingly, I am satisfied that the claimant has established a prima facie case of discriminatory treatment. Consequently, the burden of proof has shifted to the respondent to show that there is a credible non-discriminatory reason for its actions.

There was no dispute between the parties regarding the claimant’s contention that she was upset and distressed about being identified as Melissa Traveller. I found the respondent’s evidence that she has a good relationship with her clients from the traveller community and does not impose any additional charge for the extra time they are given for their treatments to be credible and compelling. I further accept the respondent’s contention that the identification of the claimant as Melissa Traveller in the text message was unintentional and inadvertent. However, ignorance of the law is no excuse and consequently I find the respondent has failed to rebut the inference of less favourable treatment. Accordingly, I am upholding the complaint. Having regard to all of the circumstances I have concluded that the respondent’s actions fall into the lower end of prohibited conduct and this is reflected in my award of €500 compensation which I consider to be just and equitable in the circumstances.

Prohibited Conduct