THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2010-013
(represented by Diarmaid Fawsitt, B.L.,
instructed by Bowman McCabe, Solicitors)
(represented by Jennifer O'Connell, B.L.,
instructed by O'Rourke Reid, Solicitors)
File Reference: ES/2007/0054
Date of Issue: 2 March 2010
Equal Status Acts - Section 3(2)(g), Disability ground - Section 15(1) - Disability not obvious - Whether respondent aware of disability - Onus on complainant to show respondent aware of disability - No prima facie case
1. Delegation under the relevant legislation
1.1. On 23rd May, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th October, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Tuesday, 15th December, 2009. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably in the course of an incident at the respondent's premises on 20th September, 2006.
3. Summary of the Complainant's Case
Evidence re incident in question
Submissions and evidence of complainant
3.1. The complainant has been diagnosed with clinical depression and clinical anxiety which, inter alia, manifest itself in shyness, nervousness and confusion.
3.2. The complainant submitted that, on or about 20th September, 2006, he was standing in the respondent's premises speaking with a friend, Mr. A, when he was approached by Mr. B, a security guard working for the respondent, who, he submitted, applied strong pressure to his back. In oral evidence, he described this pressure as punches to his back. The complainant submitted that Mr. B asked him to leave the respondent's premises in question, telling him he was barred. He submitted that he was shocked by this as he had been shopping in that particular store for 20 years without any incident prior to this occurrence. The complainant submitted that when he asked him why he was being asked to leave, Mr. B told him he didn't have to tell him why.
3.3. The complainant said that he remained in the store for two hours thereafter. In that time, he spoke once more with Mr. B and asked if he could speak with a Manager, which request was initially refused by Mr. B. The complainant said he also asked Mr. B if he would contact An Garda Siochana. He said that he was told later that this had been done and that they would come to the store. Although he later spoke with a manager, he left the store about two hours after entering it in the first instance as the Gardai had not arrived at that stage. The complainant said that he then proceeded to the nearest Garda station to contact them about the incident, although he was informed later that the Gardai did arrive to the store after he had left. The complainant submitted that he returned to the store two days later and was informed that he was barred from the premises and again he was not given a reason as to why. He stated that he has not returned to the store since.
3.4. The complainant stated that, two years previously, he had written a letter of complaint against a member of the respondents staff when, responding to another member of staff who had referred to the complainant as "her best customer", she had said that he was not her best customer. The complainant submitted that he had never received a reply to the letter of complaint. He also said he could not confirm whether, at that stage, he had told anyone of his disability.
3.5. The complainant denied the respondent's statement that his invitation to shop in the store had previously been withdrawn because his behaviour towards some of the female staff members (Ms C and Ms D) had made them feel somewhat uncomfortable. He submitted that the respondent told him of this accusation after the events in question took place. He submitted that the real reason why he was excluded from the store was because of his disability.
Evidence of Witness Mr. A
3.6. Mr A said that, on the day in question, he met with the complainant and heard Mr B tell him he shouldn't be there. He said that when the complainant asked to speak with the Manager, Mr B said the Manager was not there and escorted him off the premises through a side door. He said that he went out the door through which he had come in and chatted with the complainant outside. He said that the complainant was terribly upset.
3.7. In relation to the time of 6:45 p.m. on the DVD of the CCTV footage that was presented in evidence by the respondent, Mr A said that he was sure the incident took place between 12 and 2 in the afternoon as that was the time he went home for lunch. He added that he was in the aisle when he was speaking with the complainant, and so he could not have been the man who was standing with the complainant on the DVD, as the man in question was not in the aisle.
Evidence of Witness Ms. E
3.8. Ms E, a witness for the complainant, said she entered the respondent's premises on the day in question and saw the complainant standing in the doorway. She said she knew before she got to him that there was something wrong and so she asked him. She said he told her what had happened and she offered him the use of her phone to call the Gardai. She left him briefly and assumed when she returned that he had called the Gardai. She said that he told her he was not going to leave the shop until he got a reason why he was being asked to leave. She was not sure what time of day this incident occurred, but thought it might have been the afternoon.
Submissions re knowledge of complainant's disability
3.9. While the complainant agreed that it is not always apparent that he had a disability, he said that sometimes it was apparent. He spoke of one individual, Mr X, who still worked for the respondent and to whom he had told he had a disability. He stated that he had passed pleasantries with Mr X but had also told him things about his personal life. He acknowledged that some of the staff members of the store may not have been aware of his disability, in particular anyone he met on the day of the incident in question. The complainant said he did not know who Ms C or Ms D were.
3.10. Mr A said that he knew the complainant for ten years. He said that he had found out about the complainant's disability through mutual friends, although he had suspected there was something through the symptoms that the complainant displayed. He accepted that he would have a different view on the complainant than someone passing him in the street and that the respondent's employees might have and said that the complainant was not agitated immediately before the incident in question took place.
3.11. Ms E said she knew the complainant before the incident. She said she was a friend of a neighbour of the complainant who lives a couple of doors away from him. She said that she knew the complainant through "general chit-chat". She said that when she approached him, she knew there was something wrong as he was standing there and was red in the face. She said he looked like a man who was about to have a heart attack. She said that she was not familiar with his behaviours though admitted that she might know what was a high colour in him better than a staff member of the respondent might.
3.12. The complainant submitted a letter from a loss adjustor on behalf of the respondent which referred to an investigation into the incident that was underway. He submitted that this was in response to a letter he wrote to the respondent on 14th November, 2006. He said he received no further information regarding the matters raised. He also noted that the respondent had told him there was no contemporaneous note of the incident in question and yet one was submitted to the Tribunal at the hearing.
3.13. The complainant submitted that the respondent could not rely on Section 15 of the Acts as a defence as there was no evidence of disorderly or inappropriate conduct on his part and that he had been shopping in the respondent store for twenty years. He submitted instead that Mr B was the author of the incident, as a result of listening to gossip and telling people to go to the manageress etc.
3.14. In general, the complainant submitted that he was told only that he was barred and was not told why. He said that he had therefore suffered embarrassment, humiliation and loss of amenity as a result of discrimination by the respondent.
4. Summary of the Respondent's submission
Evidence re incident in question
Evidence of Mr B
4.1. Mr B stated that Ms C and Ms D had spoken to him about a man they were afraid of who they stated had already been barred from the store. He said that all the managers knew about the earlier incident involving the complainant. He told Ms C to point this person out if he came into the store and so, on the day of the incident in question, she came over and said that the man she had referred to was in the store. He stated that she identified that man as the complainant and then went to a floor manager who then told Mr B that he was to leave the store. Mr B said that he then went over to the complainant, touched his arm and asked him to step aside, which he did. He denied that he punched the complainant in the back but said that the complainant looked shocked. He said he told him that his invitation to treat in the store had been withdrawn. Mr B said that he was unhappy that when the complainant asked him why, he "started looking me up and down". Mr B said he responded by saying that "you know why" and that the complainant agreed with him. He then pointed the complainant's way to the side door as he did not want him leaving through the main door.
4.2. Mr B said that the complainant then left the store but came in later and stayed for two hours. He said that the complainant wanted to speak with the Store Manager but, as she was not available, spoke with Ms Y, the Duty Manager. The Gardai were eventually called, though Mr B said he told the complainant they could be a while. Mr B said that he rang the Gardai when the complainant left to tell them that the problem was over but was not aware that they turned up later.
Evidence of Ms Y
4.3. Ms Y, who was working with the respondent for 18 years, was the Duty Manager on the night in question. Though she was not directly involved when Mr B first asked the complainant to leave the store, she did witness the incident. She said that, after Ms C had identified the complainant to Mr B and the Store Manager, she saw Mr B approach the complainant and said the complainant left and came back in. She said that she later approached the complainant with Mr B. Although she didn't recall what was said, she did know that Mr B had phoned the Gardai, because Ms C was upset, and they were waiting on them to arrive.
4.4. She said that while she had known the complainant as a customer from coming in and out and that he had been ok as a customer as far as she knew, he first came to her attention when Ms C spoke of a customer harassing her, though she said that she didn't know who the customer involved had been at the time of this incident. She said that Ms C was very upset after the confrontation in question and that Ms D was also upset. As far as she knew, this was the first time the complainant had been barred but she added that Ms C had had been working for the respondent for 12 years and had not reported any other customers.
4.5. Ms Y said that disability was not a motivation in her thinking on the day in question. She said that she was aware the complainant's invitation to treat had been revoked but it was not apparent that the complainant suffered from a disability, and she was not aware that he did. In that regard, she said that, though the complainant's mannerisms were obvious at the hearing, his demeanour on the day in question was normal, though he was irate. She said she knew Mr X but he had never said anything to her about the complainant's disability.
4.6. Ms Y said she had not participated in any investigation and did not did not know about the letter of 14 November, 2006, from the complainant.
Evidence of Ms Z
4.7. Ms. Z, a witness for the respondent, had been the supervisor of Ms. C prior to the incident in question. She described an incident involving Ms C and the complainant following which, she said, Ms C refused to serve the complainant anymore. She said that the complainant sent a letter to them regarding the incident in question also complaining about the incident in question. She said that she rang him and apologised for the way he was served. She indicated that this incident was unrelated to the incident which resulted in him being barred from the store. She said she had moved to a different store operated by the respondent by the time the incident complained of occurred.
Further submissions re incident in question
4.8. In further seeking to establish the time the incident took place, the respondent stated that the complainant was talking to a night security man on the day in question but the complainant denied this.
4.9. The respondent submitted a DVD to the Tribunal which, it submitted, showed that Mr B did not apply strong pressure to the complainant's back, as alleged. It also submitted that it showed that the incident took place at a later time in the day than that alleged by the complainant.
Submissions re knowledge of complainant's disability
4.10. The respondent submitted that none of its staff, and in particular its management staff, were aware that the complainant had a disability and the complainant had failed to present any evidence that would show that it was aware of his disability. In fact, it said that the complainant had not made it aware of his disability and, in that regard, disputed that the complainant had the alleged conversation with Mr. X, who was not present at the hearing. Furthermore, Mr B and Ms Y both stated that they knew Mr X and he had not told them about the complainant's disability. The respondent added that, prior to the hearing, it was still unaware of the nature of the complainant's disability. Furthermore, it said that the complainant normally presents very well and it wouldn't be apparent that he was suffering from a disability and Mr B and Ms Y made statements at the hearing to this effect.
4.11. The respondent submitted that its policy towards people with disabilities, both customers and staff, was appropriate.
Submissions re Section 15
4.12. Section 15(1) of the Equal Status Acts (hereinafter referred to as "the Acts") states, inter alia,: "...nothing in this Act...shall be construed as requiring a person to dispose of goods..or to provide services...to another person (the "customer") in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods....or the provision of the services...to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought..."
4.13. The respondent denied that the complainant was excluded from the store because of his disability. However, it submitted that, even if the Tribunal was to find that it had discriminated against the complainant on the disability ground in that regard, it was entitled to its defence under Section 15(1) of the Acts as the complainant had previously engaged in disorderly behaviour at the store. In that regard, it submitted that the complainant was asked to leave as he had been identified by two members of staff, Ms C and Ms D, as someone whose invitation to shop in the store had previously been withdrawn because his behaviour towards them had made them feel somewhat uncomfortable. (In that regard, both Mr B and Ms Y stated that Ms C would not attend the hearing because she was terrified of him). It stated that it had a duty and obligation to protect its employees from disorderly conduct and was therefore entitled to take the steps it did in relation to the complainant. In any event, it said that any individual would have been treated the same way in the same circumstances.
4.14. The respondent said, in relation to the allegation that Ms C engaged in idle gossip, that she had never made a complaint despite being 12 years working for the respondent.
4.15. The respondent said it could not see how discrimination would have motivated the complainant being asked to leave. It said there was no logical basis for asking him to leave other than the real reason, being that outlined in par. 4.13 above. Therefore, the complainant was not treated any differently, or less favourably, than anyone else would have been treated in the same or similar circumstances. In addition, it stated that the individual involved in the incident was not aware of his disability. It said that the complainant functions in society, at least in the supermarket in question, and it is not readily apparent that he suffered from a disability and there are no visible signs of same. It submitted, therefore, that the complainant had not crossed the threshhold for establishing a prima facie case of either direct discrimination or a failure to provide reasonable accommodation.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The respondent submitted that the complainant's past behaviour had caused it to withdraw its invitation to treat and, even if I were to find that it had discriminated, that it was nonetheless entitled under Section 15(1) to refuse permission to the complainant to continue to shop in its premises. In looking at whether the respondent is entitled to rely on Section 15(1), the question I have to consider is whether it was reasonable for it to conclude, based, inter alia, on its past experience with regard to the complainant, that there was a substantial risk of criminal or disorderly conduct by him if it allowed him to enter its premises.
5.3. It is clear that the complainant was barred by the respondent based solely on the word of Ms C and Ms D. However, neither of these witnesses were present to substantiate their allegations or to present themselves for cross-examination by the respondent. The evidence presented by the respondent in relation to the alleged incident involving the complainant that led him to have his invitation to treat withdrawn was almost entirely based on hearsay. I also note that, given that he had been barred from the premises where he had shopped for almost two decades without any explanation, the DVD provided by the respondent showed the complainant to be remarkably calm, though clearly upset. There was certainly nothing in the DVD in question to indicate that there was even a remote possibility that he might pose a substantial risk of criminal or disorderly conduct or behaviour or damage to property. His demeanour at the hearing attested to this, as did the testimony of the witnesses on his behalf. I am therefore satisfied that there is no credible evidence of the complainant having carried out any behaviour remotely approaching the high bar required for the respondent to avail of Section 15(1).
5.4. Both parties spent some considerable time focussing their submissions on a number of disputes: the extent, if any, of the physical contact applied by Mr B to the complainant; the time of day the incident took place; who called the Gardai and when they were called. However, these particular disputes are immaterial to the substance of the complaint before this Tribunal, which is that the respondent is alleged to have treated the complainant less favourably than another person, without a disability, or with a different disability, would have been treated in the same or similar circumstances.
5.5. I note that the allegations being made by the complainant rest on the premise that his treatment by Mr. B was, in some way, motivated by his disability. Even if Mr B was not aware of that disability, the complainant nonetheless submits that the reason for his being barred from the respondents premises was related to his disability and so ultimately led to Mr B taking the action that he did. I am satisfied that if the respondent was not aware of the complainant's disability in that context, then it could not have discriminated against him on that ground, taking into account all the circumstances of the present case. Therefore, the key dispute in this particular complaint is whether or not the respondent was aware that the complainant had a disability. Only if I am satisfied that it was so aware do I need to consider whether the treatment of the complainant was less favourable on the disability ground.
5.6. I am satisfied based on the evidence presented that the complainant has a disability within the meaning of the Acts. I am also satisfied that the complainant has established that a person who became reasonably acquainted with him, but who hadn't been told by him directly that he had a disability, nonetheless might reasonably become aware of his disability over time, through observation and/or inquiry of third parties. Conversely, I am satisfied, based on all the evidence presented to me regarding the present complaint that, in general, a person whose contact with the complainant was infrequent and/or only in passing would not necessarily conclude that he had a disability. I also note that, while the complainant did not keep his disability a secret, equally he did not advertise it widely.
5.7. It is therefore not enough for the complainant to say that he didn't have a difficulty telling people about his disability, the inference being that, given how long he had been shopping in the respondent's premises, the respondent should and would have known about it. The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent's staff would have known him frequently enough and/or well enough to have become aware of his disability in the context outlined in the previous paragraph. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability.
5.8. While I am satisfied that the complainant informed Mr X of his disability, he was not involved in the incident in question and there was no evidence that he informed other members of staff of the complainants disability. In particular, there was no evidence that any member of the management of the respondent, or anyone directly involved in the incident in question, were told by Mr X that the complainant had a disability. I am also satisfied that it cannot properly be inferred from any of the evidence, including the testimony of the complainant, that he had made any existing member of the respondents staff, other than Mr X, aware of his disability.
5.9. Therefore, I do not, on the balance of probabilities, find that the complaint has proven that the respondent was aware of his disability in the context in which the alleged incidents of prohibited conduct took place, as outlined in paragraph 5.5 above. In that context, I must conclude that the treatment of the complainant by Mr B, or any other treatment of the complainant by the respondent in relation to the issues at stake in this complaint, was not connected with the complainant's disability. Consequently, the respondent did not discriminate against him on that basis, and so the complainant has failed to establish a prima facie case of discrimination on the ground of disability and his complaint fails.
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(2)(g) and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, the complainant's case fails.
2 March 2010