Equal Status Acts 2000-2004
John, Michael & Jimmy O'Brien
Dunnes Stores, Tralee
(represented by Harrison O Dowd, Solicitors)
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Victimisation, section 3(2)(j) - Membership of the Traveller community, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a store.
Delegation under the Equal Status Acts, 2000 - 2004
These complaints were referred to the Director of Equality Investigations under the Equal Status Acts, 2000 - 2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated these complaints 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 Acts, 2000 - 2004.
At the Hearing on 31 January 2007, Michael and Jimmy O'Brien explained that they were brothers and said that on 1 June 2001 they had entered Dunnes Stores, Bridge St, Tralee with their cousin John O'Brien who wanted to buy children's clothes. John O'Brien himself was not able to attend the Hearing as he is currently living in England.
When they went upstairs in Dunnes Stores, Michael O'Brien was approached by a female manager, who informed him that he was barred. Mr O'Brien stated that he believed that he and his two colleagues were being discriminated against because of their membership of the Traveller community. He said that he had never been involved in any trouble previously in the Bridge Street store although there had been one occasion previously where he had been asked to stay out of another Dunnes Stores outlet in Tralee.
Michael O'Brien stated that he then asked for the Gardai to be called and the manager did so. Soon after, he said that Garda Nora Brazil arrived and she took a statement from him. He said, however, that the Dunnes Stores staff would not give her a reason for the refusal.
Shortly afterwards, two security men arrived from the Dunnes Stores branch in North Circular Road. Michael O'Brien said that he recognised one of them as the man who had barred him from the NCR branch. The two men ran straight over to him and one of them kicked him on the shin. He believes that Garda Brazil would have seen this but she did not take any action. The three men then left the store.
Jimmy O'Brien also gave evidence at the Hearing supporting his brother's story. He also referred to an incident some weeks later when he returned to Dunnes Stores in Bridge Street and was refused entry by a doorman who gave his name as John Murphy. Mr O'Brien said that the doorman told him he was being refused "because his brother was taking a case to the court". Mr O'Brien said that he believed that the doorman was referring to the equality complaint notification form that Michael O'Brien had just sent to Dunnes Stores. In reply, the respondents said that they were unaware of this alleged incident and undertook to check their staff files to see if a John Murphy was employed by them in June 2001.
The respondents were represented at the Hearing by Mr Pat Guiney, Head of Security and Ms Susan Sharkey, who was a Manager in the Bridge Street branch at the time. Ms Sharkey said that she would have known Michael O'Brien at the time and that she would have been aware from her contacts with managers and security in other branches, that his " right to shop in Dunnes Stores" had been withdrawn because of a previous incident in the NCR branch.
Ms Sharkey gave evidence that on 1 June 2001 another member of staff had brought it to her attention that Michael O'Brien had entered the shop. She immediately went out to him and informed him that he would have to leave. At no time did she ask either of the other gentlemen who were with him to leave as she had no issue with them. She said that she called the Gardai at Mr O'Brien's request. When the Garda arrived she told her that Mr O'Brien's right to shop had been withdrawn.
Pat Guiney gave evidence that he had got a call from Ms Sharkey asking for support on 1 June 2001. When he arrived in Bridge Street from the NCR store, he recognised Michael O'Brien as someone he had personally refused service to previously in the NCR branch. As soon as he approached Michael O'Brien, the three gentlemen decided to leave. He said that at no point did he or the other security man with him kick Michael O'Brien.
At the Hearing, the respondents produced cctv footage of the incident on 1 June 2001. The three gentlemen are seen coming up to the first floor and separating. Michael O'Brien is then seen in discussion with Ms Sharkey and after a short time he goes over to the other 2 men and the three return to the ground floor. Michael O'Brien remains on the premises, but is partly hidden from camera, while the other two go in and out of the store.
After 15 minutes, a female Garda is seen arriving but the footage does not show her speaking directly to anyone. Mr Guiney is then seen arriving with another security man and heading towards the area off-camera where Michael O'Brien is waiting. Almost immediately, Michael O'Brien and his colleagues come back into view and leave the premises. There is no evidence on the footage of a kick being aimed at anyone.
Note At the conclusion of the Hearing, I indicated that I would contact the Gardai in Tralee to establish whether Garda Brazil could be contacted with a view to obtaining a written statement from her as to the events of 1 June 2001.
ASubsequent to the Hearing, I wrote to the Garda Superintendent in Tralee and received a reply that the Gardai were unable to trace a record of a Garda Brazil working in Tralee in 2001. I also received documentation from Dunnes Stores stating that they could only locate a list of management staff employed by the company in 2000 and 2001. There was no record of a John Murphy on the list.
Conclusions of the Equality Officer
From the evidence before me, I am satisfied that Michael O'Brien had been refused admission to a Dunnes Stores branch in Tralee previously. I am also satisfied that Dunnes Stores operate a practice of keeping their security staff in all 3 stores informed of incidents in other stores. For this reason, I am satisfied that Ms Sharkey would have had knowledge of a previous incident involving Michael O'Brien and was acting in accordance with Dunnes Stores practice in asking him to leave the Bridge Street store on 1 June 2001. For this reason, I consider that Michael O'Brien was not discriminated against on 1 June 2001.
With regard to the other two gentlemen, there is no evidence before me to indicate that they were refused service in their own right and the cctv footage would appear to support this view in so far as their is no evidence of staff directly approaching either of the other two gentlemen. Accordingly, I also find that neither John or Jimmy O'Brien were discriminated against on 1 June 2001.
However, the evidence provided by Jimmy O'Brien in relation to his alleged refusal on 27 June 2001, does, in my opinion, raise a question as to whether his refusal on that date constituted victimisation by association under the Equal Status Acts.
The evidence before me indicates that Jimmy O'Brien sent a notification form to the respondents on 9 July 2001 (almost 4 weeks after his brother Michael had done) and in this form he specifically states:
"On June 27th last, I returned to the same Dunnes Stores on Bridge Street. The security man, whose name is John Murphy, stopped me at the door. He said I couldn't come in. I asked him was I barred. He said that all of us were being stopped because my brother was taking a case to the court (Equality Authority)."
When I consider Jimmy O'Brien's account of what allegedly happened on 27 June 2001, I can see little reason for him "making it up" if in fact it not actually happen. Also, if this was a false accusation and no John Murphy was employed by Dunnes Stores at the time, I cannot understand why the company did not highlight this fact in its reply to Jimmy O'Brien on 17 August 2001.
In considering this point further, I have also noted the fact that Dunnes Stores have been unable to provide me with the names of the security staff who were employed in 2001 (apart from the witness Paul Hourigan who was employed in Bridge Street but whose name, like John Murphy's, does not appear on the management list).
Having deliberated on the above points and on the totality of the evidence before me, I find, on the balance of probabilities, that I am prepared to accept that Jimmy O'Brien was refused admission to Dunnes Stores on 27 June 2001 and that the reason given on the day was that his brother had lodged an equality complaint. I also consider that this action constituted victimisation by association against Jimmy O'Brien on the basis that he was associated with a person, Michael O'Brien, to whom the victimisation ground would have applied if he himself had been refused entry. Accordingly, I consider that Jimmy O'Brien suffered victimisation by asssociation on 27 June 2001 contrary to the provisions of Section 3 (1)(b) and 3(2)(j) of the Equal Status Acts.
By not appearing at the Hearing to give direct evidence in her own right, I consider that Mr John O'Brien has failed to establish a prima facie case of discrimination.
Also, based on the evidence before me, I find that Michael and Jimmy O'Brien have also not established a prima facie case of discrimination on the Traveller community ground in relation to the events of 1 June 2001.
I do, however, find that Jimmy O'Brien has established a prima facie case of victimisation by association in relation to 27 June 2001 and that the respondents have failed to rebut the allegation.
Bearing in mind the full circumstances of these complaints, I do not consider that awarding monetary compensation to Mr Jimmy O'Brien is appropriate in this instance. Instead, I order that the respondents send a personal letter to Mr Jimmy O'Brien acknowledging that he may have been wrongly refused entry to their store on 27 June 2001 and offering him an apology for any hurt experienced by him on the day.
30 March 2007