The Equality Tribunal
3 Clonmel Street
Equal Status Acts 2000 - 2008
Ms. Helen Cash & Ms. Kathleen O’Brien
(Represented by Ms. Gillian Reid B.L., instructed by Augustus Cullen Law, Solicitors)
Tesco Ireland Limited
(Represented by Ms. Sasha Gayer B.L., instructed by O’Rourke Reid, Lawfirm)
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, section 3(2)(i) - Supply of goods and services, section 5(1) - Harassment, section 11(5) – functions of security personnel.
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 15th May 2006. On the 21st July, 2008 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 to 2004, the Director delegated the case to me, James Kelly, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 30th September, 2008.
2. Summary of dispute
2.1 This dispute concerns a joint complaint by Ms. Helen Cash and Ms. Kathleen O’Brien that they were discriminated against by Tesco Ireland Limited by being followed and harassed by a security guard at Greystones Shopping Centre in Greystones, Co. Wicklow because they were members of the Traveller community contrary to section 3(1)(a), 3(2)(i) and section 11(5) of the Equal Status Acts 2000 to 2008.
3. Summary of Complainant’s Case
3.1 On the 1st February, 2006 Ms. Cash and Ms. O’Brien, who are members of the Traveller community visited the Greystones Shopping Centre along with their sister Ms. A and two children. They had appointments at the tanning shop in the shopping centre for approximately 4pm that evening. Ms. Cash had often visited and shopped at the shopping centre and knew the security guard on duty that day “to see” from previous visits, whereas it was her companions first visit to the centre.
3.2 The complainants maintain that they were advised to wear loose fitting clothing to their appointments, as more constricted clothing would interfere with the tanning emulsion and could cause the tan to rub off on their clothes; for that reason, they all wore pyjamas on their visit to the shopping centre that day.
3.3 The complainants state that when they entered the centre they noticed that the security guard, who was positioned at the surveillance booth at the entrance, immediately left the booth and proceeded to follow them for over an hour while they remained in and around the premises. While each of the adults attended their appointment, the other two took charge of the children and visited the various shops within and outside of the centre.
3.4 They claim that the security guard followed them into the various shopping units, and once the shopping assistants noticed that the complainants were being followed there was a visible change in the attitudes of the shopping assistants to them. The complainants claim that the security guard had a “smart look on his face” and was “laughing at them” and they could “feel him looking at them”, but often when they would turn around, he would look away.
3.5 They stated that when Ms. O’Brien finally confronted the security guard and questioned him as to why he was following them, he responded by saying “it was my job to follow yous people”, and “I was told to follow yous people”, and they consider that this was because they were members of the Traveller community. Ms. O’Brien claims that she was so upset that she called for the Gardaí to attend the scene.
4. Summary of Respondent’s Case
4.1 The respondent does not dispute that the complainants visited Greystones Shopping Centre on the 1st February, 2006; however, they maintain that the security guard did not follow the complainants and was not asked or ordered to follow them on the day.
4.2 The respondent claims that the named security guard on duty that day is Lithuanian. They were unable to present him as a witness at the hearing as he had left the security company and they had only recently learned that he had returned to Lithuania. They maintain that he had been working in the shopping centre for a number of months and they never had any difficulty with him. They also suggest that as he is Lithuanian he would not have readily recognised the complainants as being members of the Traveller community.
4.3 The respondent stated that as the shopping centre’s anchor tenant they engaged the services of a highly regarded and experienced security firm to provide them with security personnel. The main function of the security guard is to provide a visible presence in and around the centre, which in turn would provide a deterrent against anyone considering unwanted anti-social behaviour. As part of his functions, he was expected to visit all of the individual shop units within and outside of the centre and sign a log book in each of those shops.
4.4 The respondent presented a witness from the security company responsible for providing the security personnel and he maintained that all their security personnel were trained to observe peoples actions and behaviour. He also stated that their personnel are not trained to identify specific people for surveillance on account of race, ethnic origin, or because they are members of the Traveller community.
4.5 The respondent stated that they requested a report of the alleged incident from the security guard and the managers on duty on that day, and they claim that they are satisfied from the report furnished by the security guard of his account of the events that day and that he carried out his duties as per normal. The security guard also recorded that he was confronted by the complainants and asked why he was following them, where he replied that “I was only doing my job”, the respondent stated that they are satisfied that he did not behave in any way inappropriately to the complainants.
5. Summary of the Garda’s Evidence
5.1 The Garda stated that when he arrived at the scene he interviewed the two complainants and the security guard. The two complainants were upset but ‘in control’. It is the Garda’s evidence that the complainants stated that they were followed and harassed by the security guard, whereas, the security guard stated that he had no problems with the girls and was not following them. The Garda stated that he did not witness any signs of harassment when he arrived at the scene, on the contrary, the security guard voluntarily stepped back to allow the Garda interview the complainants. I asked the Garda if the security guard had admitted to him that he followed the complainants because they were members of the Traveller community, and the Garda said, no, he did not say that.
6. Conclusions of the Equality Officer
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts 2000 - 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
6.2 In the case before me for consideration, I am satisfied that the complainants are members of the Traveller community and that they were in attendance at the Greystones Shopping Centre on 1st February, 2006. I am also satisfied that an incident occurred between the complainants and the security guard, which prompted this referral to the Equality Tribunal. Therefore, the question that I must decide, in the present case, is whether the complainants were treated less favourably and subjected to harassment by the respondent’s security guard on the grounds of their membership of the Traveller community.
6.3 The complainant stated that the shopping centre was busy on the date in question and that they spent a period of time in and around the vicinity of the centre while wearing their pyjamas. It was agreed by both of the complainants and Ms. A. at the hearing that they felt they were followed and harassed from the time they entered the shopping centre, because of what they were wearing and the fact that they were members of the Traveller community.I am satisfied from the evidence adduced at the hearing that the security guard did not know the complainants, and I have not been presented with any evidence to suggest that he had any difficulty with them prior to their visit on that day. I am satisfied that the likelihood of a Lithuanian security guard readily recognising the complainants as being members of the Traveller community at the point of entry to the shopping centre as somewhat unlikely. However, I am of the opinion that as an experienced security guard he would have taken note of the three women by the manner of how they were dressed, on a winters evening in February, primarily for the reason that he is expected to be observant as part of his role as a security guard.
6.4 I accept that the security guard was employed to keep a visual presence in and around the centre and as part of that function he would visit each of the shopping units many times during the course of the day. This would require a regular patrol of the premises and I am satisfied that within a period of one hour he would have crossed paths with the complainants, as well as other visitors to the centre, on many occasions. The complainants suggest that people were looking at them as a consequence of them being followed by the security guard; however I am of the view that the complainants would have attracted attention on themselves as a result in the manner of how they were dressed.
6.5 The respondent was unable to present the security guard, a pivotal witness to the case, to present direct evidence to the tribunal. They claim they hired a private investigator to help them locate him, where they learned that he had returned to Lithuania. However, it has long been established that a tribunal may deviate from the rules of evidence applicable to a court of law as part of its investigation, I refer to, Kiely v The Minister for Social Welfare (No. 2)  I.R. 276 at 281 Henchy J. stated that “Tribunals exercising quasi judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result”, and also in Goodman v Hamilton  2 IR 542: Costello J. stated at page 565:“There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures …………”. I am therefore satisfied that the failure of the respondent to produce the security guard as a witness at the hearing is not in itself sufficient to raise an inference of discrimination in the present case.
6.6 I have also taken cognisance that there are a number of inconsistencies in critical evidence presented by the complainants. On the complaint form referring the cases to the Director of the Equality Tribunal they stated that “the security guard admitted to the Garda that he was ordered to follow/watch me because I was a Traveller” and “[the security guard] started to laugh at me and was still laughing and intimidating me while I was speaking to the garda”. However, I have taken note of the evidence presented by the Garda at the hearing, that the security guard made no such admission to him on the date or that he behaved in an intimidating manner towards the complainants. I have found the Garda’s evidence to be persuasive in particular that he did not witness any form of harassment upon arrival at the scene and that the security guard indicated to him that he was happy to invite the complainants to return to the shopping centre as he had no difficulty with them. I find the Garda witness to be very credible and his evidence to be succinct and clear, which I place significant weight on in determining this case.
6.7 Accordingly, having regard to all the evidence presented, I find that on the balance of probabilities the respondent did not discriminate against or harass the complainants on the grounds of their membership of the Traveller community contrary to the provisions of the Equal Status Acts 2000 - 2004.
7.1 I find that a prima facie case of discrimination and harassment has not been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i), and section 11(5) of the Equal Status Acts 2000 - 2004 and, accordingly, I find in favour of the respondents in the matter.
The Equality Tribunal
5th December 2008