EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-033
Ms A and three minors
(represented by Gilvarry and Associates Solicitors)
A Sandwich Bar
(represented by Higgins, Chambers and Flanagan Solicitors)
File Reference: ES/2011/0120
Date of Issue: 5th September 2012
Key words: Equal Status Acts, Member of Traveller community, Discrimination, No prima facie case
Delegation under the relevant legislation
1.1. This case concerns a complaint by Ms A (the complainant has been anonymised to protect the identity of her children who are minors) that she and the three children accompanying her were discriminated against by a sandwich bar on the Traveller community ground contrary to 5(1) of the Equal Status Acts 2000 - 2008 [hereinafter referred to as 'the Acts']. On 15th September 2011 the complainant referred a claim to the Director of the Equality Tribunal under the Acts. On 9th May 2012, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under these Acts, the Director delegated the case to me, Orlaith Mannion, 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. This is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 21st May 2012.
2. Summary of the Complainant's Case
2.1. On 9th July 2011 the complainant submits that she and her three children were refused service. According to the complainant, a manager approached her and said 'You are barred'. When Ms A asked for reasons she submits she was told it was because of an incident a few weeks earlier. The complainant is adamant that she was never in the sandwich bar before. The complainant rang the Gardaí. When the Gardaí arrived, they said it was a civil matter.
3. Summary of the respondent's case
3.1 The respondent submits that when Ms A and three children came in, a member of staff informed the proprietor that one of the children was involved in disorderly conduct a few weeks previously. According to the respondent, this disturbance involved this minor (Ms A's son) and three others. It started by them sitting down in the sandwich bar and playing cards for about an hour without ordering food or a beverage. They were quite boisterous but the staff left them alone until the lunch-hour rushed started. The proprietor then approached them and told them they would have to leave unless they ordered food. They were disorderly and stole crisps on their way out.
3.2 Therefore the proprietor approached the complainant on 11th July and said that she thought her son was one of the people who were involved in this incident a few weeks previously. She submits that this was done in a gentle way without any intention of embarrassing the complainant or her children. Ms A was adamant that her son was not involved in the previous incident. In direct evidence, the proprietor stated that she then gave the complainant and her son the benefit of the doubt and said that they were welcome to stay. However, the complainant got more agitated so the proprietor was relieved when Ms A called the Gardaí.
3.3 The proprietor maintained that refusing custom is not the way to run a business and that if she did so for discriminatory reasons, she would not have a business left.
4. Conclusions of the Equality Officer
4.1 Section 38A of the Acts sets out the burden of proof:
Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
The issue for me to decide is whether the complainant was discriminated against regarding provision of a service on the Traveller community ground?
4.2 The complainant agreed with the proprietor's version of events in direct evidence but she continued to maintain that her son was not involved in the earlier incident. However, the crux of this case is that neither the complainant nor her children were refused service. I am satisfied that the proprietor approached Ms A regarding her concern that one of the people accompanying her did cause a disturbance previously. On hearing Ms A's protestations, she gave Ms A and her son the benefit of the doubt and agreed to serve them. This was corroborated by a witness that the respondent brought to the hearing. The witness was a customer in the shop at the time. In direct evidence, he said that he looked up from his newspaper when he heard the complainant shouting. He stated that he heard the proprietor say that they were welcome to take a seat and order whatever they wanted. Shortly afterwards the Gardaí arrived and the complainant and her children left. While I note he was a witness for the respondent, I accept his evidence that he was merely a customer in the shop and that he neither has a professional (he is an accountant) nor a personal relationship with the respondent.
4.3 As the complainant was not refused service, she and the three minors has failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts. In the circumstances of this case, I find that seeking clarification as to a customer's identity is not discriminatory. I am satisfied that the proprietor would have acted in the same way if she had reason to suspect that a person, who was not a member of the Travelling community, had been involved in a disorderly incident within her premises.
5. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 5 (1) of the Equal Status Acts.
Accordingly, the complainants' case fails.