Decision No: DEC-S/2014/004
Swan Wholesale Distribution
File No: ES/2012/152
Date of issue: 22 May, 2014
Headnotes: Equal Status Acts, 200-2012 – sections 3 – discriminatory treatment – refusal of service – ejection from premises – Membership of Traveller communit.
1. DISPUTE AND BACKGROUND
1.1 This dispute involves a claim by Mr. William McCarthy (“the complainant”) that he was discriminated against by Swan Wholesale Distributors (“the respondent) on grounds of membership of the Traveller community, in terms of section 3(2)(i) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts when it refused him service at its premises in September, 2012 and requested that he leave the premises immediately.
1.2 The complainant referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 7 November, 2012. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 Acts the Director delegated the complaint to the undersigned, Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2012. My investigation of the complaint commenced on 8 April, 2014, the date the complaint was delegated to me. Submissions had been received from both parties and exchanged and a Hearing on the complaint was scheduled for 30 April, 2014. Written notification of this Hearing was sent to the parties by registered post on 25 February, 2014. The complainant was present at the Hearing. The respondent failed to attend and was not represented. I was satisfied that the respondent had received the notification of the Hearing on 26 February, 2014 and I proceeded to hear the complaint.
2. SUMMARY OF COMPLAINANT’S CASE
2.1 The complainant states that he is a member of the Traveller community and that this fact would be known to staff in the respondent. He adds that if his appearance did not indicate this he had accompanied his mother, who the respondent is fully aware is a member of the Traveller community, to the shop on a number of occasions and it would therefore be evident that he too was a Traveller. He further states that in mid-afternoon on 3 September, 2012 he went into the respondent’s premises with the intention of purchasing a bag of “dog nuts” and some toiletries. He adds that he walked to the back of the shop where the “dog nuts” were located and as he picked a bag up he received a call on his mobile telephone from a family member asking him to purchase some milk. He adds that two men approached him and one of them, who appeared to be in charge, told him he had to leave the shop immediately, The complainant states that he was shocked at this as he had been in the shop on several previous occasions (both alone and with his mother) and had not encountered any problems. He adds that he told the man he had money to make his purchases but he repeated his order to leave. The complainant states that when he sought an explanation from the man as to why he (the complainant) was being told to leave the premises, the man initially ignored him but subsequently said “I decide who comes into the shop” and that if he (the complainant) did not leave he “would call the Guards”. In the course of the Hearing the complainant stated that he left the shop without further ado. He rejected the assertion contained in the respondent’s submission that he “caused a scene” by shouting and insisting he was being treated unfairly because he was a member of the Traveller community and stated that whilst he suggested he was being discriminated against because he was a Traveller, he did not raise his voice.
2.2 In the course of the Hearing a number of points contained in the submission filed by the respondent were put to the complainant. He accepted that on the day he was close to the “dog nuts” and may have leaned against the pile of bags which were stacked up, but he rejected the assertion that he sat on them to take the telephone call on his mobile. He stated that on a previous occasion he had purchased some toiletries in the shop (deodorant, shower gel etc.) and that he had sprayed some deodorant on his wrist/hand to see what it smelled like. He rejected in the strongest terms the assertion by the respondent that “he had regularly and excessively abused the personal hygiene products by spraying Lynx on himself without making a purchase”. He argues that had he behaved in such a manner the respondent would surely have raised the matter with him at the time and it did not do so. He submits that the treatment of him on the day amounts to discrimination of him on grounds of membership of the Traveller community contrary to the Equal Status Acts, 2000-2012.
3. SUMMARY OF RESPONDENT’S CASE
The respondent filed a submission to the Tribunal in July, 2013. It did not attend, nor was it represented at the Hearing and the Tribunal receive no communication from it as regards this failure.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of membership of the Traveller community, in terms of section 3(2)(i) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts, when it refused to serve him on 3 September, 2012 and asked him to leave the premises. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal.
4.2 Section 38A of the Equal Status Acts, 2000-2012 sets out the burden of proof which applies to claims of discrimination under those statutes. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the ground specified. It is well settled in a line of Decisions from this Tribunal that the type or range of facts which may be relied upon by a complainant can vary from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Therefore it is not necessary for him to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. Where such a prima facie case is established it falls to the respondent to prove the absence of discrimination. If the complainantdoes not discharge the initial probative burden required his case cannot succeed.
4.3 The first issue which must be addressed is whether or not the respondent was aware the complainant was a member of the Traveller community. The complainant states that staff members of the respondent were aware of this fact because (i) they knew him personally and (ii) his mother shopped there and it is well known that she is a member of the Traveller community. I accept the complainant’s evidence in this regard. Moreover, the respondent did not state in its submission filed with the Tribunal that it was unaware the complainant was a member of the Traveller community. In light of the foregoing I am satisfied that the respondent was aware (on 3 September, 2012) that the complainant was a member of the Traveller community.
4.4 It is common case that the complainant was refused service on the day in question and was told to leave the premises – the respondent stated in its submission that the person involved was a Supervisor on duty in the shop at the time. The respondent appears to suggest (in its submission) that the reason(s) this Supervisor requested the complainant to leave the shop on the day was (i) he sat on bags of dog food whilst on his mobile phone “contrary to all health and hygiene rules” and (ii) he had on a number of previous occasions whilst in the shop “regularly and excessively abused the personal hygiene products by spraying Lynx on himself without making a purchase”. The complainant rejects these assertions. He states that whilst he was close to the “dog nuts” and whilst talking on his mobile phone he may have leaned against the pile of bags which were stacked up, he did not sit on them. He further states that on a previous occasion he had purchased some toiletries in the shop (deodorant, shower gel etc.) and that he had sprayed some deodorant on his wrist/hand to see what it smelled like. In the course of the Hearing I found the complainant to be an honest and credible witness who gave his evidence in a consistent and forthright. I therefore find his version of these events more compelling. I further find that the respondent’s statement contains a significant embellishment of the events which is intended to portray the events in a more serious light. Moreover, as the respondent did not attend the Hearing I was unable to test the assertions detailed in its submission and consequently this reduces the weight which I can attach to that evidence.
4.5 The question to be addressed is, in the circumstances outlined in the preceding paragraph and in light of my finding that the complainant’s version of events is to be preferred, was the complainant treated less favourably than a non-Traveller would have been treated in similar circumstances. Having carefully evaluated the evidence adduced I am satisfied, on balance, that the respondent would not have treated a non-Traveller customer in the same manner. Accordingly, the complainant has established a prima facie case of discrimination on grounds of membership of the Traveller community contrary to the Acts. The respondent has failed to rebut this inference of discrimination and the complainant is therefore entitled to succeed with his complaint.
5. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 25(4) of the Equal Status Acts, 2000-2012. I find that the respondent discriminated against the complainant on grounds of membership of the Traveller community, in terms of section 3(2)(i) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts, when it refused to serve him on 3 September, 2012 and asked him to leave the premises. In accordance with my powers pursuant to section 27(1) of the Acts I order the respondent pay the complainant the sum of €1,000 by way of compensation for the distress suffered by him as a consequence of the prohibited conduct concerned.
22 May, 2014