Rosara McCarthy V Dunnes Stores, Tralee (represented by Harrison, O'Dowd, Solicitors)
1.1 This dispute concerns a complaint by Rosara McCarthy that she was discriminated against, contrary to the Equal Status Act 2000, by the management of Dunnes Stores, Tralee. 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 Rosara McCarthy that she entered Dunnes Stores on Thursday 28 June 2001 to purchase goods but was asked to leave for no reason.
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 she had been involved in a previous incident in another Dunnes Stores branch in Tralee.
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 Rosara McCarthy has lived all her life in Tralee
- Since the store opened in 1993, and up until the incident in 2001, Ms McCarthy regularly did her weekly shopping in Dunnes Stores North Circular Road (NCR) branch.
- Occasionally she shopped in the Dunnes shop in the Horan Centre. She has also shopped in other supermarket chains in Tralee.
- Ms McCarthy had no problems in getting served in Dunnes prior to 2001 although, on occasion, she felt that security personnel were watching her closely and she believed that this was because she was recognised as a Traveller.
- On Thursday 28 June 2001, she went by herself to do her weekly shopping in the NCR branch. Her son dropped her off and she was to get a taxi home with her groceries.
- She spent some time going around the store and had a trolley full of groceries by the time she reached the milk and dairy foods aisle.
- At that point, she was approached by a security man who asked her to leave the store. She asked for a reason but was not given one.
- She was very embarrassed and asked for the manager.
- The security man told her to leave her groceries where they were and he escorted her through the checkouts
- She referred to the £1 coin she had placed in the trolley and the security man said he would refund it. He never did.
- No other member of staff spoke to her that day
- She waited at the door for 30 minutes to see the manager but he never arrived
- She then phoned the Gardai who advised her to see a solicitor.
- She felt very hurt by the incident and said that she had lost confidence in herself over it
- A few weeks later she went to the Horan's Centre branch and was served with no problem. However, some months later a security man in the Horan's Centre asked her to leave because she "was barred from the NCR store"
- At the Hearing on 23 April 2003, the respondents referred to Ms McCarthy's involvement in an incident in the Horan Centre branch on 14 May 2001, six weeks before the date of the alleged discrimination in the NCR branch.
- On hearing the respondents' remarks, Ms McCarthy recalled an incident in the Horan Centre involving her daughter but was unsure as to the date of the incident.
- She recalls that, on that occasion, her teenage daughter was stopped by security men when she tried to leave the store wearing a pair of new shoes which had not been paid for.
- Ms McCarthy had been somewhere else in the store at the time and only became aware of the incident when she saw her daughter being escorted to the office.
- She followed her daughter into the office where her daughter admitted that she had tried to leave with the shoes. Her daughter was very upset.
- Ms McCarthy offered to pay for the shoes but this was refused.
- A Garda was called and took details of the incident
- As she was leaving the store, a security man said to her "Don't come in anymore"
- After the incident, Ms McCarthy did not visit either store for a while
Evidence of Respondents Mr Pat Guiney, Security Manager
- Dunnes Stores have 3 branches in Tralee, two of which are large stores. The Horan Centre store is open for 13/14 years while the NCR store is open 10 years. A smaller store in Bridge Street is also open a long time.
- Dunnes Stores do not operate a policy of discrimination against Travellers and many Travellers are regular customers in Tralee. Staff have been made aware of the provisions of the Equal Status Act 2000.
- Dunnes Stores have always used their own security staff and very seldom need to bring in contract staff. Security staff are kept aware of incidents in the other stores and, where video footage of incidents is available, are shown the incidents.
- Security staff normally work in a particular store but do spend some time in other stores on overtime or for training purposes.
- Security personnel have been fully briefed as to how to deal with particular situations.
- If someone causes trouble in a store or attempts to steal goods, security staff identify themselves and tell the customer that their "invitation to trade is being withdrawn". It is company policy not to give any explanations. In effect, this means that the customer is barred.
- Customers who are barred from one store are automatically barred from all 3 stores in Tralee.
- On 14 May 2001, Ms McCarthy's daughter was caught leaving the Horan Center wearing shoes she had not paid for.
- A security man brought her to the office where the Gardai were called.
- Mrs McCarthy followed into the office, identified herself as the child's mother and offered to pay for the shoes. This offer was refused.
- The Gardai took details of the incident.
- As Ms McCarthy and her daughter were leaving, they were both told that their "invitation to trade had been withdrawn". The barring of both parent and child in such circumstances is in keeping with company policy as parents are deemed to be responsible for their children while in the store
- The security man on duty in the NCR branch on 28 June 2001 is no longer an employee of Dunnes Stores. When the Hearing date was set, the company contacted the security man and asked him to attend the Hearing. Shortly before the Hearing, the security man told the company that he was not prepared to make himself available for the Hearing.
- After the complaint of discrimination was notified to them in 2001, the company asked the security man for a written report of the incident
- At the Hearing on 23 April 2003, Mr Guiney referred to the security man's written report which described how he become suspicious of Mrs McCarthy when she arrived in the store on 28 June 2001.
- As Mrs McCarthy was proceeding around the store, the security man's report stated that he brought her to the attention of the security manager, Mr Dan Roche.
- The security man's report went on to say that, on seeing Mrs McCarthy, Mr Roche indicated to him that he recognised her from a previous incident involving shoes in the Horan Centre where she had been barred.
- According to the respondents, the incident in the Horan Centre occurred on 14 May 2001
- On being told of the previous incident, the security man's report states that he approached Mrs McCarthy, told her that her "invitation to trade had been withdrawn" and escorted her off the premises.
- The respondents explained that the intention was that the security man would have given this evidence orally at the Hearing. However, on learning of the security man's unavailability at the last minute, the company contacted Mr Dan Roche a few days before the Hearing and asked him to attend instead.
Evidence of Respondents - Mr Dan Roche, Security Manager - NCR branch
- Mr Roche only received full details of the complaint and Hearing the day before the Hearing itself
- As the incident on 28 June 2001 occurred nearly two years previously, he said that he has no clear recollection of the incident itself or of talking with the security man about Mrs McCarthy on the day
- However, on seeing Mrs McCarthy at the Hearing, he confirmed that she was familiar to him and he remembered her as the woman he had seen on the video footage when her daughter was caught removing shoes from the Horan Centre
- He said that he particularly remembered the footage, as Mrs McCarthy could be clearly seen "causing a scene" and arguing strongly with a security man at the door as she and her daughter were leaving
- While he now could not specifically remember talking to the security man on 28 June 2001, he is satisfied that the written report of the security man accurately reflected how he would have acted in such circumstances. He has no reason, therefore, to doubt the security man's account of the conversation they apparently had on 28 June 2001.
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 Dunnes Stores on 28 June 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 NCR Store on 28 June 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 28 June 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 I note that in this case a certain amount of hearsay evidence has been put forward by the respondents in relation to the role played by the security man on 28 June 2001. In considering how hearsay evidence has been interpreted previously by the courts in this jurisdiction, I have had regard to the following statement in Cullen v Clark  IR 378per Kingsmill Moore J: " there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay"
In the case before me, the respondents have put forward the evidence of three people. Two of these, Mr Guiney and Mr Roche, gave evidence at the Hearing and the complainant was afforded an opportunity to cross-examine them. On the other hand, the security man's account of what happened on 28 June 2001, was relayed through Mr Guiney, based on a written statement made after the incident. Because of the manner in which this evidence was presented, the complainant was not afforded an opportunity to cross-examine the security man which, in accordance with natural justice and fair procedures, should have been available to her.
In the circumstances, I find that it would be inappropriate of me to apportion much weight to the hearsay evidence of the security man in this case. I, therefore, propose to base my deliberations principally on the evidence of the witnesses who were present and the complainant herself.
7.5 In deliberating on the case be before me, I consider the following factors to be the most important and persuasive:
- At the Hearing, Rosara McCarthy confirmed that she had been a regular shopper in both Dunnes Stores main branches in Tralee over the years. While she felt that she was being watched on occasion, she had never been asked to leave prior to 2001
- The respondents state that it is the company's practice for security men to approach people who have been barred previously, on recognising them in the store. They are then told that their "invitation to trade has been withdrawn". No further reason is given and the customer is escorted from the shop. From Mrs McCarthy's own evidence, this would appear to be what happened on 28 June 2001.
- The respondents state that Mrs McCarthy's "invitation to trade" was withdrawn on account of the shoes incident involving her daughter, on 14 May 2001, and that this applied to all three Tralee stores.
- Although she cannot remember exactly when it happened, the complainant confirms that herself and her daughter were involved in an incident over shoes in the Horan Centre and that she was "asked to leave" as a result
7.6 On the basis of the above, I am satisfied that Mrs McCarthy and her daughter were barred for non-discriminatory reasons from the Horan Center in May 2001 and that Dunnes Stores acted in accordance with their standard practices in asking Mrs McCarthy to leave their NCR Store when she visited there on 28 June 2001, the date of the alleged discrimination.I, therefore, consider that the complainant was not treated less favourably than a non-Traveller would have been treated in similar circumstances on 28 June 2001. Accordingly, I 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 respondents.
31 July 2003