Helen McGinley (Represented by Longford Community Resourses Ltd ) V Aine's Boutique, Longford (Represented by Groarke and Partners, Solicitors)
1.1 This dispute concerns a complaint by Helen McGinley that she was discriminated against, contrary to the Equal Status Act 2000, by the management of Aine's Boutique, Longford. The complainant maintains that she was discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Helen McGinley that she entered Aine's Boutique on Saturday 13 October 2001 to purchase goods but was asked to leave with no reason given.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainant was asked to leave because of previous incidents involving members of the McGinley family.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
Evidence of Complainant
- Ms Helen McGinley (nee McDonald) has lived all her life in Longford
- She has regularly visited Aine's Boutique over the years and has bought goods there on several occasions
- Prior to the incident on 13 October 2001, she was always "treated very well" by the staff of the boutique
- Neither herself nor any members of her own family had ever been involved in any form of trouble in Aine's Boutique
- In early 2001, she married a member of the McGinley family
- Her husband, Tommy McGinley and his family also lived in the Longford area
- On 13 October 2001, Helen and her husband drove into Longford as Helen wanted to buy some clothes for a cousin's wedding
- She went into Aine's Boutique while her husband waited outside
- She had just started to look at a rail of clothes when Mary McCormack tapped her on the shoulder and asked her to leave saying that they "don't allow your kind in here"
- Helen knew Mary as she had served her previously. She asked for a reason but was told that the shop did not have to give a reason
- Aine Farrell then approached her and asked her to leave or she would call the Gardai
- Helen McGinley went outside to her husband who advised her to go back in as she had done nothing wrong
- At that point, Tommy McGinley had been joined by his brother, Denis, and his wife, who had also come into Longford to do some shopping
- Denis McGinley advised them that they should wait for the Gardai as they were being discriminated against
- She then went back inside with her husband, at which point the Gardai were called
- While she was waiting in the middle of the shop, Mary McCormack started sweeping up around her feet
- Helen felt very embarrassed as the floor was not dirty and nowhere else was being swept
- When Garda John Brady arrived, Helen McGinley asked him to find out why she was being asked to leave.
- Having spoken to Aine Farrell, Garda Brady returned to her and told her "she's the manager and wants you out". She was not given any reason.
- Helen and Tommy McGinley went outside to phone Deirdre Hines in Longford Community Resourses Ltd. Garda Brady left at that point.
- Deirdre Hines advised her to ask for a reason and arranged to meet Helen McGinley the following Monday
- Aine Farrell then came outside the shop and informed Helen that she would call the Gardai again if they did not move away
- Detective Peter Mullen arrived soon afterwards and Helen explained the full story to him. Detective Mullen went inside and spoke to Aine Farrell
- When he came back out, Detective Mullen told Helen that Aine Farrell had told him that she was not saying that Helen had done anything wrong but that she simply did not want her on the premises.
- Detective Mullen advised her to leave and said that he would be available to give his account of the incident should the matter be raised at any enquiry in the future
- Neither Helen nor Tommy McGinley had been informed by Tommy's mother that Aine Farrell had told her on 9 October that all members of the McGinley family were barred from Aine's shops from then on
Evidence of Respondents, Ms Aine Farrell, Owner/Manager and Mary McCormack, Staff member
- Ms Farrell manages two clothes shops in Longford. Aine's Boutique caters for all women's fashions and includes a bridal boutique. The other shop, Fabu, is geared more towards the younger female fashion market.
- Both shops cater for a wide range of customers. Many Travellers shop regularly in both stores
- Ms Farrell nor her staff have ever discriminated against anyone.
- Aine Farrell normally has 5 staff on duty each Saturday including her sister Mary McCormack
- She has known Helen McGinley for many years and knows her to be a member of the Traveller community
- Helen McGinley has been a regular visitor to both of Ms Farrell's shops over the years
- Prior to her wedding in early 2001, Helen McGinley had chosen a wedding dress in Aine's Boutique with her future husband and had put a £30 deposit on it
- Helen McGinley has never caused trouble in either shop. Ms Farrell described Ms McGinley as timid and quiet and always well-behaved
- Ms Farrell has, however, had difficulties with members of Tommy McGinley's family over the years. She described these incidents as follows:
- In 1993/1994, a female member of the McGinley family removed two expensive bras from the shop
- In February 2001, Tommy McGinley came into the shop to seek the return of the £30 deposit on Helen's wedding dress. Helen was not with him. When he was told that it was not shop policy to make refunds after 28 days, Tommy got very abusive. He later returned to the shop with his mother, who announced that she was putting a curse on the shop, and on Mary McCormack, who was on duty that day.
- Some weeks later, when Helen returned to the shop with another of the McGinley family, agreement was reached to provide Helen with £30 worth of lingerie in lieu of the deposit. This was acceptable to Helen. On foot of this agreement, Mary McCormack asked that Tommy McGinley's mother be asked to return to the shop to apologise and lift the curse. Some weeks later the mother returned and blessed both Mary and the shop.
- On 5 October 2001, two female members of the McGinley family removed a pair of jeans from Fabu. Helen McGinley was not with them that day
- On 8 October 2001, two female members of the McGinley family became very abusive to staff in Aines Boutique
- On 9 October 2001, Aine Farrell informed Tommy McGinley's mother that members of her family were not welcome on her premises any more and advised Mrs McGinley to advise members of her family accordingly
- On 10 October 2001, another female member of the McGinley family "stormed" through the shop intimidating staff and customers
- On 13 October 2001, the date of the alleged act of discrimination, Helen McGinley entered the shop and was "staring" at staff, which Aine Farrell says was out of character for her. Tommy McGinley could also be seen "staring" into the shop from the street. By her actions, Ms Farrell concluded that Tommy and Helen McGinley knew about the ban that had been placed on the McGinley family and "were looking for trouble"
- Since 13 October 2001, Aine Farrell has lifted the ban on one of the female McGinley family who is now a regular customer again
- When Helen McGinley entered Aines Boutique on 13 October 2001, Aine Farrell was dealing with a customer and nodded to her sister, Mary McCormack, to deal with Ms McGinley.
- Mary approached Helen and said "Could you leave the shop, please". The term "your kind" was not used.
- Helen McGinley responded by saying "I didn't do anything" and demanded a reason
- Mary McCormack states that Helen then "blew up" and physically threatened her.
- Aine then intervened and said "If you don't leave , I'll call the Gardai" .
- Helen went outside and returned with her husband and his brother. The brother paced around the shop, intimidating customers and saying that they had "a great case here"
- At that point Aine rang the Gardai and also rang her husband
- Aine noticed that one of the men had brought dirt into the shop on their shoes and asked Mary to sweep it up. Most of the dirt was near where Helen was standing.
- When Garda John Brady arrived, Aine Farrell told him she she did not want the McGinleys in her shop
- Garda Brady asked the group to leave and left himself when they had gone outside.
- Instead of going away, the McGinleys remained outside Aines making comments to passers-by and potential customers about "discrimination"
- Aine Farrell rang the gardai again
- When Detective Mullen arrived she explained the position to him and he advised the McGinleys to move along.
- For the rest of the afternoon, the McGinleys continued to drive up and down outside Aines Boutique in an intimidatory manner.
Evidence of Customer, Maureen Fitzpatrick
- Ms Fitzpatrick visits Aines Boutique several times a year to purchase clothes.
- She was present in the shop for the duration of the incident on 13 October 2001.
- She recalls a disturbance in the shop where a lady was "in Aine's face"
- She felt uncomfortable as there were also two men talking loudly and intimidating customers and staff
- Another lady appeared in the shop alleging discrimination and advising customers "not to buy anything off that one"
- Later, she could hear the group outside the shop shouting comments about "discrimination"
Evidence of Detective Peter Mullen
- He was called to Aines Boutique before 2 pm on 13 October 2001
- He met Helen McGinley and her husband outside with another couple
- Helen told him she had been "put out for no reason"
- He spoke to Aine farrell who informed him that she had barred the McGinley family on account of previous problems in her shops
- Aine Farrell said that the group outside had been intimidating staff and customers for over an hour and she wanted them to go away
- Detective Mullen's primary concern at the time was to ensure that there was no breach of the peace.
- He told Helen that there were allegations of intimidation and advised her to move on
- He told her that he had noted her claim of discrimination and that he would be available to give his account of the incident should it arise as part of any future enquiry
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being asked to leave Aine's Boutique on 13 October 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his or her actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents accept that the complainant was asked to leave the Boutique on 13 October 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 13 October 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.5 In deliberating on the case be before me, I consider the following factors to be the most important and persuasive:
Helen Mc Ginley has been a regular customer in Aine Farrell's shops over the years
Aine Farrell has known Helen McGinley for many years and knows her to be a member of the Traveller community
Helen McGinley is a quiet reserved individual who has never caused trouble in either of Aine Farrell's shops previously
In early 2001, Helen married into the McGinley family
Aine Farrell has known members of the McGinley family for many years and knows them to be members of the Traveller community
Members of the McGinley family have created problems for Aine Farrell and her staff over the years
On 9 October 2001, Aine Farrell took a decision not to serve members of the McGinley family anymore
This decision was communicated to Helen McGinley's mother-in-law
Helen McGinley was unaware of this decision on the date of the incident on 13 October 2001
On 13 October 2001, Helen McGinley was asked to leave Aine's Boutique on account of her association with the McGinley family
7.6 Based on the above evidence, it appears clear to me that the decision to bar the McGinley family was due to their troublesome nature, rather than their membership of the Traveller community. It follows, therefore, that it was Helen McGinley's association with a troublesome family that was the cause of her refusal, rather than her association with a Traveller family. With regard to Helen's own membership of the Traveller community, I can find no evidence to show that this was an issue in this case. The evidence shows that Helen was served regularly over the years in both Aine Farrell's shops with no difficulty, and Helen herself has stated that she was always "treated very well". On the basis of the above, I am satisfied that the decision to refuse service to Helen McGinley was not taken for discriminatory reasons. I, therefore, find that a prima facie case of discrimination on the Traveller community ground has not been established.
8.1 I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000. Accordingly, I find in favour of the respondent.
8.2 The evidence before me in this case indicates that Helen McGinley was an innocent victim of circumstances and I can appreciate how Helen McGinley came to feel that she was being discriminated against. She personally had never given the staff or management of Aine's Boutique any cause for concern in the years she had been visiting the shop. Yet, it would appear that, simply as a result of her marriage to a member of the McGinley family, she suddenly found herself being treated differently than before. I find, however, that, while the treatment she received may have been unfair, that it did not constitute discrimination under the Equal Status Act 2000.
8.3 As I have found that discrimination did not occur in this case, I am not in a position to order that a specific course of action be taken. I would, however, suggest that perhaps the respondents might reflect sympathically on Helen McGinley's own situation and give some thought as to whether the time may now be right to welcome her back as a customer to their shops.
30 April 2003