Complainant

Respondent

Representatives

Ms Lorna Madden BL instructed by Ms Rosa Eivers, Irish Human Rights and Equality Commission.

Tommy Smyth, Tommy Smyth and Associates

Anonymised Parties

A Member of the Roma Community

A Supermarket

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062590-001

04/04/2024

The Complainant is from Romania and a member of the Roma ethnic group. The Complainant submits that he was refused service at the Respondent’s premises in on 5 October 2023. It is the Complainant’s case that he was discriminated against, harassed, and victimised on the basis of his Race and membership of the Traveller Community.

The Respondent rejects the Complainant and instead contends that the Complainant was refused service because he was initially abusive to staff, called them “racists” and that he was asked to leave the store for this reason.

 Evidence of the Complainant.

The Complainant is living in the provincial town for over nine years and lives within seven minutes’ walk of the Respondent supermarket. He went to the shop on the day in question, accompanied by his teenage daughter. He gathered a few items, including chicken and a sandwich, and went to the counter to purchase the food. The Complainant said the female staff member behind the counter, who was identified as Ms A, said he was not allowed in the store  and that she told him speak with Mr B  (the proprietor), despite him saying he was doing nothing wrong. Footage was produced by the Complainant from the Complainant’s phone, of the aftermath of the incident. The footage, as exhibited,  seems to reflect the transcript exhibited from the Complainant’s submission where  a member of staff came around, identified as the Assistant Manager Mr C, and said that the reason the Complainant was not being served was because he was “calling people racist.” The Complainant asked when he had said this and the staff member said that the Complainant had just said it, two minutes ago. The Complainant said that, “this is racism”, and the staff member replied, “there you go again”. The Complainant asked the staff member again what the reason was for denial of service, and the staff member said, while pointing towards the door, “Talk to (Mr B), talk to the owner. Get out. Talk to the owner. Get out and talk to the owner.” The Complainant said he called the Gardai.  

The Complainant accepted that his wife was barred from the shop and that this resulted from a past  incident when Mr B approached her about the disruptive behaviour of his children. His wife and himself had contemplated taking an action under the Acts at the time, had sent a HS1 form, but decided not to pursue the matter further. He subsequently went to the shop to meet Mr B and apologised for her behaviour.

The Complainant said he was deeply affected, as was his daughter, by what transpired. He felt humiliated and contemplated that his family should leave the town because of the hurt.    

In cross examination it was put to the Complainant that his description of Ms A throwing his items on the ground, was untrue and conflicted with his original  statement when he wrote   “The staff member (Ms A) picked up the groceries from the counter and threw them on the floor.” The Complainant accepted that this was untrue but said that he had used a language ‘app’ when filling out the form and  this translated directly to what he wrote on the form. He accepts that Ms A put his items aside. It was put to him by the Respondent’s representative, Mr Smyth, if it was  the Complainant’s  position that his items were checked  through the till. The Complainant said yes. At this juncture Mr Smith produced a copy of a purported receipt (the Receipt) which shows that items on the day had in fact been put through the till and subsequently voided. (The Complainant’s representative, Ms Lorna Madden BL, objected to the production of this evidence arguing that I should reject it on the basis it was not sent to the Complainant’s side prior to the hearing and that it should be rejected as evidence at the hearing. I informed the parties that I would deal with the weight or otherwise of this document in my decision. This is addressed below in the findings and conclusions section). The Complainant denied that he called the staff racist but instead he used the term “racism”.  He denied that he had a copy of  an Irish Constitution in his pocket  which he allegedly  produced to Garda D, who was called upon the scene and whom the Complainant’s representative said would give evidence to the contrary.

Legal argument :

The Complainant submits that an  HS1  Form was sent to the Respondent’s shop by registered post on the 1 December 2023. The ES1 Form set out the details of the complaint and also sought the following additional information: a copy of the store’s CCTV footage from 13:45 to 14:30 on 5 October 2023; a copy of the staff rota for 5 October 2023 indicating the identities of the staff members working; and confirmation of the owner/legal name and registered address of the store. There was no response from the Respondent.  The An Post receipt of delivery with a purported signature of Mr B, Proprietor of the Respondent Supermarket was exhibited. A further letter was sent later that month by registered post seeking the same information. A similar receipt of delivery and acceptance signature was exhibited.   The Complainant said that no response was made to either communication.  The Complainant submits that the Adjudicator should make the appropriate inference as provided for under section 26 of the Act.

Summary of Legal argument:

The Complainant referred to the following sections of  Act :Section 3 of the Act  defines discrimination based on various grounds, including race and membership of the Traveller community. Section 5 prohibits discrimination in the provision of goods and services. Section 11 prohibits harassment and holds responsible persons liable for preventing harassment. Section 38A establishes the burden of proof for a prima facie case of discrimination. Section 3(2)(j) defines victimisation and the protections against it.

The Complainant  cites the following cases:

Southern Health Board v Mitchell [2001] 12 ELR 201: Where the Labour Court established the burden of proof for a prima facie case of discrimination, requiring claimants to prove primary facts on the balance of probabilities.

Cork City Council v McCarthy EDA/21/2008: Which highlights  that discrimination does not need to be the only explanation but must be within the range of inferences from the facts.

Oskar Hangurbadzo v Ladbroke (Ireland) Limited ADJ-00031246: Illustrates discrimination based on stereotype and refusal of service, leading to an award of €7,500.

CT and FE vs Dunnes Stores Unlimited Company [2023] IECC 4: Where the Circuit Court dealt with  Roma community discrimination  The Complainant submits the Court discusses issues of stereotype and mistaken identity, with recommendations for preventing discrimination and ensuring fair treatment.

The Complainant submits he  belongs to a protected group (Roma Community). He  faced less favourable treatment, in refusal of service and being barred from the shop, than customers who were not members of the Roma Community. The Complainant asserts that the  treatment can be inferred to be based on discriminatory grounds of race and ethnicity.

Harassment:

The Complainant submits he  experienced harassment through verbal intimidation, being told to leave the store and baseless accusations of calling staff racist. The Respondent failed to take reasonable steps to prevent such harassment.

Victimisation:

The Complainant asserts he  was victimised for submitting an ES1 form on behalf of his wife  and opposing the shop’s unlawful actions. This led to adverse treatment, including refusal of service, and being barred from the shop.

The Complainant in conclusion  submits he  has established a prima facie case of discrimination, harassment, and victimisation under the Equal Status Act. The Respondent's actions, or lack thereof, demonstrate a failure to prevent discriminatory treatment and harassment, thereby justifying the claims made by the Complainant.

Evidence of Ms. A Sales Assistant:

The witness said she was acting in customer service for nearly two years with the Respondent. She gave evidence that customers have  been barred from the shop for incidents of aggression, being drunk or stealing. She said she welcomed and valued all customers of the  shop, regardless of where they came from. The witness was at the till on the day when the Complainant approached with his basket of items. She said she had an immediate feeling of dread and felt anxious and intimidated by the Complainant before he had said  a word, but she did not say he was barred from the shop.  She said he was staring at her but that the Complainant had said “Why are you staring at me?”. She described putting the items through the till and pacing a warm chicken in a brown bag, which is retained for warm cooked goods. She continued in evidence to say  “Did I know he was Roma?  This had nothing to do with nationality”. She said that the customer then called her a racist and she put the groceries aside and called her manager. She was very nervous and deeply upset by the incident.

The witness said in cross-examination that she had no help in writing a previous undated  comprehensive signed statement (exhibited) with she did in her own time at her  home, but she did acknowledge that she was requested to do so by Mr B, whom she acknowledged also gave her the name of the Complainant. When pressed she accepted that she did not include in the written statement the  verbal evidence she gave that  the Complainant had  said to her “What are you staring at?”. She said that she had forgot to put that in the statement. A  relevant part of  her written statement was read out to her where it stated “(the Complainant”)  approached my till with his daughter, he was being unnecessarily aggressive in his tone, I continued to serve him as the shop was busy”. It was put to the witness that seems to also contradict her verbal testimony where she said he had initially said nothing  but instead she felt instinctively intimidated. In response she said she meant “tone” to mean the way he initially  attended at the till, without saying anything. On the issue of the receipt for voidance of purchase, she said she only saw this on the day of the  hearing but explained that receipts are issued only for cancelled card payments and that the transaction in question was in cash. The witness acknowledged that she had no formal training  on obligations under the Equal Status Act.   

Evidence of Mr C, Assistant Manager:

Mr C accepted that his prior written statement was an accurate reflection of what transpired. He said he was on duty on the day and heard a commotion near the till where a male was shouting loudly. He said he told the Complainant “Calm down boy” after Ms A told him she was  called a racist. The witness  said that he offered to serve him, but the Complainant  then called the witness a racist. The witness decided to ask him to leave the store for being aggressive. He said he was “Barred because he called us racists.”

In my  examination, the witness accepted that Garda D, who was called to the scene,  had interviewed him (the witness) shortly after the incident. The witness accepted  that Garda D’s official statement on dealing with the Complainant on the footpath outside the store, contained the following segment: “I said I would go and speak with the staff which I did. I was informed by the staff that the male was barred  and that when told so he became aggressive and started calling them racist.” The witness accepted that this was contrary to the sequence that he gave in his evidence when he stated that the Complainant  was barred because the Complainant called them racists when the Garda  statement the Complainant became aggressive and called staff racist after (emphasis added) he was told by staff he was barred.

 Evidence of Mr B, Supermarket Proprietor:

The witness gave evidence on the ES1 form, which he  acknowledged is a  legal document giving notice of potential action under the Acts. Whilst accepting  that the receipt of  delivery of the registered letter  seemed accurate, the witness categorically denied that he received the documents. He could give no explanation as to why his signature appeared as such and denied it was his signature. Instead, he said that  some unknown person probably signed for it, but to his knowledge ”no one in the shop signed for it”.

A second registered  letter was sent from the Irish Human Rights and Equality Commission (IHREC) confirming representation of the Complainant and a further request for personal data, including CCTV. The witness did not contest the exhibited  delivery receipt but said it was not his signature and neither did he have sight of this document.   

The witness accepted in further examination that he was the proprietor of an adjoining Post Office. He accepted that that while  he was potentially the victim  of a  fraudulent interference with registered  post on two occasions, he did not investigate the matter further nor did he make it known officially to An Post, although  he did say he said it to an employee in his adjoining Post Office branch.

On the substantive issue the witness said he was twenty years a proprietor of the shop and encountered lots of situations where customers were barred. These included, amongst other things, drunkenness, theft, and abusive behaviour. In April 2023, prior to the incident at issue in this case, he was in attendance at the shop when he observed  the Complainant’s children behaving  disruptively around the shop to the annoyance of other customers. He said that when he brought the behaviour of the children to the attention of the Complainant’s wife, she became abusive and threw a basket at him. He said he barred the Complainant’s wife from the shop but not the Complainant’s children, who shop regularly on the premises. The witness said the Complainant met him afterwards and apologised for his wife’s behaviour. He said that he was not aware that the Complainant and his family were from the Roma community. 

The witness accepted in evidence that he had viewed the entire  CCTV footage after the staff told him about the behaviour of the Complainant on the day. He acknowledged that the only clip made available to the Complainant, and to  the Hearing, was the aftermath of the alleged incident and that this  did not capture what actually transpired initially at Ms A’s till, the matter at issue in this complaint. He said that he did not retain this piece of footage, which was wiped in November 2023, but that in hindsight he accepted it  should have been retained. The witness said he is the owner of the adjoining Post Office and the Complainant, nor his family, are barred from there.

In cross-examination it was put to the witness that it was not credible that he did not know that the Complainant and his family were from the Roma Community, particularly the fact that the Complainant’s wife wore the traditional Roma long dress. He replied  this was not apparent to him because he also saw her  attired in tracksuit bottoms.

Evidence of Garda D:

The witness was called by the Respondent. The witness gave evidence that he was based at the local  Garda Station and attested to the veracity of the fact that he made a statement on an  incident he was called to on 5 October 2023 at the Respondent premises. This statement was signed by the witness on 30 April 2024 and stamped  on official Garda Siochana notepaper. The statement was exhibited at the hearing. The witness  said he made the statement at the request by phone call from Mr B, whom he knew in a professional capacity only as part of his ongoing official duties when dealing with the concerns of business owners in the town.   

On the day in question the witness gave evidence that he responded to a 999 call from the Complainant  to go to  the Respondent shop.  He found the Complainant to be very irate whilst standing outside on the pavement. The witness asked him his name and he  began shouting at the witness, calling him racist, and demanded that a different  Garda to attend. The witness said that this was not possible because he was the only one available to attend.  The witness said he had previous dealings with the Complainant. The witness said that the Complainant drew a copy of the Irish constitution saying he was Irish too and demanded his rights. The Complainant  said to the witness that the staff in the shop were racist. He described the Complainant as being aggressive and standing too close to him. He called on him to step back but decided not to arrest him under the circumstances but instead used his discretion because the Complainant was accompanied by his young daughter. He went to speak with staff.  The witness in further examination said that this was a  civil matter and not a criminal matter, therefore the statement he made in April 2023 would be more an outline of events as distinct from the detail that ordinarily goes with potential criminal prosecutions.  The witness accepted that the portion of his statement that read: “I said I would go and speak with the staff which I did. I was informed by the staff that the male was barred  and that when told so he became aggressive and started calling them racist.” conflicted with the sequence of events as described in the evidence of the  Respondent’s employees.

Summary of the Respondent’s  Argument:

The Respondent denies the accusation that its employees treated the Complainant negatively due to his race or membership in the Roma  Community. The Respondent has serious obligations under Employment Law, GDPR Regulations, and Health & Safety Law to ensure the well-being of its employees. The Respondent submits that since the Covid pandemic, the level of unnecessary, abusive, and aggressive behaviour faced by retail employees has unfortunately increased, as supported by various studies.

The Respondent asserts that in any retail, hospitality, or service business, the organisation must reserve the right to refuse admission or service to individuals for various reasons. In the Respondent’s shop, this right is indicated by a sign at the front door. Over the past 18 years, the Respondent estimates that it has refused service to over 100 people for reasons including, but not limited to:

·       Shoplifting

·       Verbal abuse of employees or other customers

·       Damage to stock or property

·       Physical abuse of employees or other customers

·       Threatening behaviour

The Respondent rejects the notion that any such decisions are made based on any of the nine protected grounds under the Act. The Respondent submits that it has refused service to both Irish and foreign individuals, regardless of gender or age. Mr. B testified that he did not receive the ES1 form submitted by the Complainant.

The Respondent contends that the Complainant and his family are visitors to the Post Office premises adjacent to the Centra store, also run by Mr B. The Complainant is not barred from this premises as he has never been unreasonable or rude to anyone working there and has never wrongly accused them of being racist. However, Mr B had to refuse entry to the Complainant's wife due to an incident in the store earlier in 2023. The Complainant subsequently apologised for his wife's behaviour, and Mr B confirmed that only she was refused entry to the store, while the rest of his family were allowed to enter.

The Respondent submits that employee testimony indicated that the Complainant was unpleasant and rude to employees, escalating to calling them racist at the till. He then took out his phone and started recording employees without their permission. The Respondent notes that the Complainant's evidence was inconsistent, initially claiming his shopping was thrown on the floor, only to retract this in verbal testimony. The Complainant also claimed his items were not scanned by Ms A, but a receipt produced at the hearing showed the items were scanned and subsequently voided at sale. The employees objected to his behaviour and the Assistant Manager informed him that if he continued behaving in this manner, he would be barred.

In further argument the Respondent outlined the danger that employees could be subject to if  phone footage of them being called racist was uploaded online, especially in the current climate.   The Respondent submits that  because the Complainant  engaged in these behaviours towards its employees that he was told he was not welcome in the store and was banned. The Respondent argues that this was not for any other reason and certainly not because of his nationality nor being part of the Roma community.  

Discrimination and Discriminatory Grounds:

Section 1 of the Acts defines "prohibited conduct" as "discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act".

Discrimination is defined in section 3 of the Act as less favourable treatment on grounds of one or more of the discriminatory grounds. The grounds cited in this case are race and membership of the Traveller community. The Equal Status Act 2000, as amended by the Equality Act 2004, transposes the Racial Equality Directive (Directive 2000/43/EC), which addresses discrimination both in the workplace and in the provision of services, specifically including race and membership of the Traveller community, including Roma. Therefore, the grounds cited  in this case are underpinned in the Directive.

My consideration of this case is based on the submissions and  evidence presented at the hearing, including CCTV and mobile phone footage and  an official Garda Siochana report on the incident with the Garda who made the report appearing in person at the hearing to give evidence.  The  Complainant requested that  inferences be drawn against the Respondent for not replying to the ES1 form, in line with section 26 of the Acts. I have addressed that point below. 

Burden of Proof:

Section 38A(1) of the Equal Status Act stipulates that "where in any proceedings facts are established by or on behalf of any 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" .

As outlined by the Labour Court in Southern Health Board v Mitchell [2001] ELR 201, the burden of proof in equality law requires the complainant to set out facts significant enough to raise a presumption of discrimination. In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that the complainant must establish facts from which discrimination may be inferred, noting that "mere assertions unsupported by evidence" cannot suffice to allow an inference of discrimination.

A Complainant  in an equality claim must address three questions: (1) whether they fall within a discriminatory ground, either currently, previously, potentially in the future, or by association; (2) whether they incurred less favourable treatment (direct discrimination); and (3) whether the less favourable treatment was "on grounds of" the discriminatory ground.

When  considering the primary facts adduced by the Complainant I must  take into consideration any contrary  evidence of the Respondent, when determining whether the burden of proof should shift . In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

Section 26 of the Act  allows inferences to be drawn from a respondent's failure to provide "material information "("Material information" includes reasons for any act or omission, relevant practices or procedures) and information about comparators. sought under section 21(2)(b) of the Equal Status Act, where it 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 Commissionmay 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).

In relation to harassment, section 11 of the Act provides:

 (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5))

another person (“the victim”) where the victim—

5

( a) avails or seeks to avail himself or herself of any service provided by the person or purchases

or seeks to purchase any goods being disposed of by the person,

( b) …

( c) …

(2) A person (“the responsible person”) who is responsible for the operation of any place that is

an educational establishment or at which goods, services or accommodation facilities are offered to

the public shall not permit another person who has a right to be present in or to avail himself or

herself of any facilities, goods or services provided at that place, to suffer sexual harassment or

harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are

reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of

the other person referred to in subsection (2) or of a category of persons of which that other

person is a member.

(4) …

(5) ( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the

discriminatory grounds, and

(ii) …

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and

creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist

of acts, requests, spoken words, gestures or the production, display or circulation of written

words, pictures or other material.

 In relation to victimisation, section 3(2)(j) of the Equal Status Act provides a person is victimisedwhere he or she is treated differently from another person because he or she:

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the [ adjudication officer] or a court in

connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs

(i) to (iv).

Findings in Respect of the ES1 form and CCTV footage:

Mr B stated that he did not receive the ES1 form nor the  later letter of representation in December 2023. Both were sent by registered post and receipts of delivery by An Post were exhibited, showing signatures of acceptance.  Both also contained requests for the relevant CCTV footage. Mr B said in sworn evidence that he never received the documentation and that someone else must have signed in his name. Neither in submission prior to the hearing, nor in argument at the hearing, did the Respondent argue that it was not notified in accordance with section 21 of the Acts.   I find  Mr B’s  account of non-receipt of the relevant documents to be implausible. Mr B owns an adjoining Post Office. He accepted he was aware of the criminal offence where registered post is unlawfully interfered with, but he made no further enquiry with his employees when  the potential offence was made known to him, nor did he make further inquiry with An Post.  I can come to no other reasonable conclusion on this issue but to find that the Respondent did receive the ES1 in December 2023 and therefore  was notified  fully in accordance with the Acts.

I note also that the Respondent  did not respond with an ES2 form, nor did it supply, nor retain,  the full CCTV footage which  was in the  possession of the Respondent.  Mr B supplied  footage only  of the aftermath of the alleged discriminatory incident, although he admitted having been previously in possession of the full footage, which was subsequently wiped. Mr B gave no cogent reason why this part of the footage was wiped.  Section 27 of the Acts allows me to “… 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 missing CCTV footage was a relevant and vital piece of evidence that was in the exclusive knowledge of the Respondent. Therefore, I can reasonably infer thar the non-release of the relevant  CCTV footage  shifts the burden of proof to the Respondent as it had the means or knowledge to dislodge or not, the inference of discrimination.

Findings in Respect of the Substantive Complaint:

The fundamental conflict in evidence in this case centres around the sequence of events that happened on 5 October 2023 when the Complainant, accompanied by his 13-year-old daughter, approached the till with his basket of grocery items.  There is  no dispute that the Complainant was denied service on the day.  There is a factual dispute regarding what precisely happened and whether it was on grounds of race and membership of the Roma community that the Complainant was not served. The Respondent claims that the Complainant became abusive at the till when being served by Ms A, that he then  called her a racist, created a scene and was asked to leave the shop because of his behaviour. The Complainant submits that when he was at the till Ms A said he was barred, and he then reacted negatively to this statement because he believed there was no reason to bar him other than the fact that he was from the Roma Community.

Ms A in evidence attested to a comprehensive statement which she said she wrote out in her own home. This was exhibited. She said she wrote it out at the request of Mr B, and though undated, was seemingly made some months in advance of the hearing. At the hearing proper Ms A gave evidence that the Complainant  approached her till in an aggressive manner without saying anything and  the Complainant then said “What are you staring at?”. In the normal course of events, such a utterance reflects  an immediate intimidatory approach, but Ms A could give no plausible reason why she did not refer to this in her original statement, when the setting and shorter timelapse would have invariably led to greater recall and consideration. I therefore found her verbal  evidence to be  inconsistent on a critical point when compared to her written statement.

Mr C  accepted in evidence  that his accounts of events were  contrary to the sequence in Garda D’s written report where it was stated the Complainant became aggressive and called staff racist after he was told by staff he was barred.

The Complainant was also inconsistent in aspects of his testimony. He admitted that his original written assertion—that the grocery items were thrown to the ground—was incorrect, explaining that it was a translation error while using a language app. Additionally, he testified that his items were not scanned by Ms A. However, during cross-examination, the Respondent produced a copy of a purported receipt, which had neither been provided to the other side nor verified as an official receipt. Ms A testified that she had only seen the receipt on the day of the hearing. No plausible reason was given for why it was produced only on the day of the hearing and why it was not available to Ms A or mentioned in her original written statement. Under these circumstances, I cannot accept the document as valid evidence since it was presented in a prejudicial manner without giving the other side or myself the opportunity to test its reliability. Despite excluding the document as evidence, I am satisfied that even if it had been accepted, it carried no significant relevance other than to verify that the sale was voided.

The Respondent in essence  presented an account  suggesting that a customer entered the shop with his 13-year-old daughter, spent ten to fifteen minutes shopping, including picking up a warm food item, approached the till, and then became abusive and aggressive for no particular reason. The customer started shouting at staff and accusing them of being racist, leading to his ejection from the store and being barred due to his behaviour. This account  appears illogical when examined further. In legal analysis, it is crucial to recognise that aggression does not occur in isolation but is often a response to a preceding action or event directed at the individual. The evidence provided by the Respondent's witnesses was unconvincing in several key aspects. This  included the unconvincing  denial of receipt of registered post, the deletion of the most crucial piece of CCTV evidence, the inconsistency in Ms A's account of the Complainant's initial approach to the till compared to her written statement, and Mr C's admission that the official written Garda report of his interview with Garda D contradicted his (Mr C’s) verbal account. According to the Garda report, the staff stated that the Complainant reacted negatively when informed he was barred, not the other way around. I preferred the evidence of the Complainant which I found to be cogent and persuasive when he said he was told he was barred and refused service at the till, and that this led to his negative behaviour. The Respondent's position that there  was no bias against the Complainants' Roma heritage is noted  but I am satisfied, on the balance of probabilities, that the denial of service was based on a stereotype associated with persons of Roma heritage. I find it likely that the Respondent's witnesses knew the Complainant and his family were of Roma heritage, as they had attended  at the shop previously and lived locally, but I conclude  that they (the staff) were under instruction to deny the Complainant service, should he appear at the shop.  

In conclusion, I find that the Complainant established a prima facie case of discrimination based on the refusal of service on the grounds of being a member of the Traveller/Roma Community and that this was not satisfactorily  rebutted by the Respondent. I also find that the subsequent  ejection from the shop in the manner described constituted harassment as defined under section 11 of the Act. I do not accept that the Complainant was victimised because no evidence was given that the staff at the shop on the day were aware of a previous ES1 form that was sent to the Respondent concerning an incident with the Complainant’s wife.

The Complainant’s spoke of the humiliation suffered by himself in front of  his young daughter on the day of the incident and I consider this to be a serious aggravating factor in the case. Having considered all the circumstances in this case, I direct the Respondent to make compensation of €6,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

For the reasons outlined above, I find that there was prohibited conduct in denying the Complainant a service, and he was also harassed. I order the Respondent to pay €6,000 in redress for the effects of discrimination.

Equal Status Acts 2000-2015, Traveller Community, Roma, Harassment, Victimisation.