THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2012-034
(represented by F.G. Phelan & Co. Solicitors)
(represented by Conor Kearney B.L, instructed by in-house solicitor)
File Reference: ES/2011/0121
Date of Issue: 3rdSeptember 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 Anne Maughan that she was discriminated against by Dunnes Stores Ltd on the Traveller community ground contrary to 5(1) of the Equal Status Acts 2000 - 2008 [hereinafter referred to as 'the Acts']. On 19th 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 29th June 2011 the complainant began her grocery shop in Dunnes Stores, Castlebar. Her child accompanied her. It was approximately 15:00. She submits that when her trolley was half-full a member of staff of the respondent approached her and asked her to the leave the premises. When Ms Maughan enquired why, she was told that she was barred.
2.2. The complainant submits that she was never barred from the premises. The member of staff told the complainant that they retain photographs of people who are barred. She showed the complainant a photograph. The complainant maintains that it was not her but her sister. Ms Maughan submits she showed the Dunnes Stores employee her Garda Identification to show that she was not the person in the photograph. Ms Maughan requested that the Gardaí in Swinford be contacted.
2.3. Ms Maughan requested that she be allowed to finish her shopping but this was also refused. Ms Maughan rang the Gardaí but when they arrived they said it was a civil rather than a criminal matter. She submits that she was never barred and has no shoplifting convictions. The complainant submits that if there was confusion over whether a 'buffer' (person who is not a member of the Traveller Community) was barred or not, the necessary checks would have taken place.
3. Summary of the respondent's case
3.1 The respondent accepts that the complainant was asked to leave their store on 29th June 2011. However, they submit that she was identified by more than one employee as somebody who was not welcome in their store. They submit that they retained a folder of photographs of people who are barred for various reasons e.g. being abusive to staff, disorderly conduct or shoplifting. A security guard approached Ms Maughan while doing her shopping and asked her to leave. She refused to cooperate. The Security Guard consulted with the Security Manager who agreed with his decision to ask Ms Maughan to leave. When Ms Maughan reached the till, she was refused service. Ms Maughan rang the Gardaí who, the respondent submits, asked her to leave. She has also been asked to leave by employees of Dunnes Stores on subsequent occasions.
3.3 In direct evidence, the Security Manager stated that the reason Ms Maughan's picture was in the 'not welcome to shop' folder in Dunnes Stores, Castlebar is that she was previously caught shoplifting there. The Gardaí were informed and the respondent submits that they have CCTV footage. One of Anne Maughan's sisters is also barred. This is the person who the complainant claims the respondent is confusing her with. The Security Manager stated that while there is a family resemblance, she can tell the difference between them. The security guard denied that Ms Maughan produced Garda identification but that even if she had, both sisters are barred.
3.4 The respondent rejects that the complainant was refused service because she is a member of the Travelling community. They submit that she was barred for good reasons and that it was not a case of mistaken identity.
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.
4.2 The issue for me to decide is whether the complainant was discriminated against regarding provision of a service on the Traveller community ground?
4.3 I found both the security guard and the security manager to be cogent witnesses and, on the balance of probabilities, I prefer their recollection of events in relation to this issue. The 'not welcome in the store' folder was submitted to me and I found the photograph therein to resemble the complainant. A photograph of one of her sisters was also in the folder to indicate that she was also barred. Both photos are dated prior to the lodging of this complaint. The folder contained photographs of a diverse range of people. Whether or not Ms Maughan resembled her sister is irrelevant as both were barred from this store. I find that the respondent is entitled to avail of Section 15 (1) of the Acts:
For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, 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 premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, 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 or the premises or accommodation are located. [my emphasis]
I am satisfied that the security guard is a reasonable person with significant experience in the security industry and that he genuinely believed Ms Maughan was a substantial risk of disorderly conduct and damage to the property of the respondent. He also consulted with the Security Manager who affirmed his decision. I am satisfied that if an other person, who was not a member of the Traveller community and had previously been caught shoplifting, would have been treated in the same way.
4.4 I find that the respondent continued to believe that the complainant posed a substantial risk of damage to the property of the respondent and therefore she continued to be refused service. Again, I am satisfied that a person who was not a member of the Traveller community would be treated in a similar way. Therefore, the complainant has failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts.
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 complainant has 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 complainant's case fails.