Equal Status Acts, 2000 to 2008
Equality Officer Decision
Mr Kevin Okpara
(represented Mr Niall Cavanagh BL,
instructed by David Powderly Solicitors)
File Ref: ES/2008/223
Date of Issue: 11 June 2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(h), race ground -prima facie case - discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 5 December 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 13th April 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 24th May, 2010 and both parties were in attendance.
This dispute concerns a claim by the complainant, Mr Okpara that he was discriminated against by the respondent on the grounds of race in terms of Sections 3(2)(h) of the Equal Status Acts, 2000-2008 by being refused service at the respondent's shop.
2. Summary of the Complainant's Case
2.1 The complainant alleges that he has been discriminated against because he is black. On a Sunday between September 28th and October 12th 2008, the complainant was shopping at Centra in Westland Row. He noticed that a member of staff was following him around the shop. This staff member told him that the manager had banned him from the shop because of his coughing on a previous visit to the shop. The following morning he went into Centra again and asked the manager in person if he was banned. The manager said that he was not.
2.2 On Monday 27th October, the complainant visited the shop on his way home from work to buy two cans of beer. He picked up the beer cans and as he walked through the shop he realised that he was being followed by two staff members. They stopped him and told him that they were not allowed to serve him because of his coughing. They tried to grab the beer cans from him and one of the cans burst open. One of the staff members told the other to hold him while he called the Gardai. The Gardai arrived almost immediately and a staff member told them what happened. The Gardai took the complainant's details and then left. The complainant was made to feel like a criminal and was upset by the incident. He was the only black person in the shop on each of the occasions and he believes that he is a victim of hatred. He was discriminated against by being refused service and he was also reported unnecessarily to the Gardai.
3. Summary of the Respondent's Case
Witness for the Respondent - Store employee
3.1 The respondent presented as a witness a named employee who was working in the shop at the time of the incidents. The employee stated that on the first occasion he noticed the complainant, Mr Okpara was coughing very badly in the shop. This was causing him to spit and he did not take any precautions to prevent it. The employee was concerned, because there was a large display of uncovered food in the shop. About two weeks later, the complainant was in the shop again coughing in the same way. The other customers in the queue asked the employees what they were going to do about it. The employees asked the complainant to cover his mouth while he was coughing in proximity to food. At this point the complainant came up behind the employee who was sitting on the floor packing shelves. The complainant coughed into the employee's neck and head in an aggressive way. He paid for his goods and went to the door. When he reached the door, he turned back and coughed and spat at the employees. In the opinion of the employee, this was done deliberately to be provocative, and as a result, he told the complainant not to come back into the shop. The complainant said that he would be back and the witness considered this to be threatening behaviour. The witness reported the incident as part of his normal update to his manager the following evening.
3.3 About a week later on the bank holiday Monday 27th October, the employee and his team leader were working in the shop. The complainant came in and picked up two cans of beer. The employee told the team leader that Mr Okpara was banned from the shop and they both went over to ask him to put down the goods and leave the shop. The complainant opened one of the cans of beer and asked them what they was going to do about it. They considered this to be damage to the property and threatening behaviour so they told him that they were calling the Gardai and they asked the complainant to wait. One of them stood in front of him, but they did not physically restrain him. The Gardai arrived very quickly because the Centra employees were also dealing with an incident involving three people shoplifting. The Gardai took details from the complainant and the complainant left the shop.
Witness for the Respondent - Store Manager
3.3 The store manager for the respondent also gave evidence at the oral hearing. By way of background, he stated that of their 22 staff members, only about 4 are Irish and the rest are non-nationals. As a busy city centre convenience store, they serve people of all nationalities all the time. The store manager says that he and his staff are well-trained in food safety regulations and they have a duty of care towards their customers. He said that his employee was very concerned about the uncovered food when the complainant coughed and spat on them.
3.4 The store manager agreed that Mr Okpara came to him on the Monday after the second incident, but at the time he did not know that Mr Okpara had been banned by one of his employees. He explained that the incident occurred on Sunday evening and the staff members belonged to the evening shift. When Mr Okpara came in on Monday morning, the manager had not met or spoken to the people on the previous evening shift, and he did not see them until later that day. When he met them later, they reported the incidents which had occurred on the previous shift. One of these incidents related to Mr Okpara and the manager agreed with their decision to ban him. The store manager did not know Mr Okpara, but said it was quite routine for his staff to ban people, so he did not give the matter much attention.
3.5 The store manager was not present at the time of the final incident involving the Gardai, but he did speak afterwards to a (named) Garda who was dealing with the two incidents (the shoplifters and the complainant). The store manager said that he was informed by Gardai that he was entitled to make a formal complaint regarding the matter of criminal damage caused by the complainant. However he decided he would pursue the shoplifters only on this occasion and not the complainant. He decided to deal with the issue by maintaining the ban on the complainant.
Legal Submission on behalf of the Respondent
3.6 The complainant's representative cited several sections of Regulation (EC) No 852/2004 of the European Parliament which covers the hygiene of foodstuffs. He stated that the employees are obliged to be vigilant and take precautions in an area where open foodstuffs are available. In the present case he stated that the employees' initial concerns arose solely from the complainant's coughing and from his refusal to cover his mouth while coughing.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 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.
4.2 In terms of basic facts both the complainant and the respondent agree that the complainant visited the shop on a number of occasions, which ultimately resulted in the complainant being banned from the shop. The complainant claims that he is a victim of hatred and this refusal of service is a direct result of his skin colour.
4.3 I note that during the hearing the complainant agreed that he had been in the shop many times before the first coughing incident and that on some of those occasions, he had been served by the staff member who eventually banned him. This leads me to form the opinion that the parties were vaguely familiar with each other beforehand, but the problems started specifically as a result of the first coughing incident. Both parties agree more or less on the details of this first incident. The complainant said that he had a bad cough and there was nothing he could do to stop himself and the respondent said that they were concerned about Health and Safety issues relating to the food. They both agree that no words were exchanged on this occasion.
4.4 The parties disagree with respect to the second incident. The complainant said that his coughing was again non-intentional and non-provocative. The respondent said that from their perspective, it started as a genuine Health and Safety concern, which then turned into threatening behaviour towards their staff. Having listened carefully to both parties, I find the respondent witness more compelling, because he was more detailed and he dealt with each issue raised, whereas the complainant was vague on certain aspects. I accept that the complainant was annoyed about being asked to cover his mouth, and that in response he came up behind the employee and coughed into his neck and head. I note that the employee found this act to be upsetting and offensive. I also accept the employee's statement that the complainant acted provocatively as he was leaving the shop, as a result of the employee telling him not to come back again.
4.5 The third incident involved the Gardai being called when the complainant returned to the shop. At the hearing there was a disagreement between the parties about the property damage. On balance I find the respondent's version of this incident more compelling. The complainant himself accepted during the hearing that the respondent' employees had not used physical force against him, as he initially had said. Therefore I cannot accept the complainant's contention that the beer can simply opened by itself while the complainant and Centra employees were arguing. It follows therefore that I accept the respondent's version; ie: that the complainant deliberately opened the can without paying for it, in a way which was intended to provoke the employees. Therefore their action in calling the Gardai was done in order to protect their employer's property and not an act of discrimination. The complainant contends that the fact that the Gardai did not arrest him is proof that he had done no wrong. The respondent manager on the other hand claims that it is simply not possible for them to make formal complaints to the Gardai in every single case and therefore they ban customers from their shop instead. On this point I found the respondent store manager credible and I accept that this is their normal practice.
4.6 In summary, the complainant raised a number of issues where he was treated in an unfavourable way; however I find that each of these issues is explained by the complainant's own behaviour towards the employees and by their concerns with respect to food safety and property damage. I find that the respondent' employees treated the complainant in the same manner they would treat any customer who they believed was acting in an inappropriate manner.
5.1 On the basis of the foregoing, I find that the complainant has not raised a prima facie case of discrimination on the grounds of race and I therefore find in favour of the respondent.
11 June 2010