ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004999 and ADJ-00005000
Complaint Reference Nos.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 02/03/2017
Workplace Relations Commission Adjudication Officer: Enda Murphy
Location of Hearing: Ashdown Park Hotel, Gorey, Co. Wexford
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainants claim that they were discriminated against by the Respondent on the grounds of their membership of the Traveller community in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts and contrary to section 5(1) of the Equal Status Acts in terms of the Respondent's decision to refuse them access to a service which is available to the general public.
Summary of Complainants’ Case:
The Complainants, Mr. H and Mrs. H, are husband and wife and both are members of the Traveller community. The Complainants drove to the Respondent’s store which is located in a provincial town on 8th July, 2016 as Mrs. H wished to purchase a mobile telephone. Both of the Complainants had visited the store prior to his date and did not encounter any difficulties in obtaining service on these occasions. Mrs. H entered the store while her husband remained outside in the car to take care of their children. Mrs. H was served by a male Sales Assistant of the Respondent’s staff and she purchased a mobile telephone, a SIM card and a €10 top-up voucher from him for €180. Mrs. H left the store and returned to the car where she was informed by her husband, Mr. H, that she should have bought the phone on the Vodafone rather than the Meteor network.
While Mrs. H was waiting in the store the Store Manager referred to her husband as “it” and indicated that the Gardai would not be able to do anything for her. After Mrs. H asked when the Gardai would be arriving at the store the Store Manager refunded the cost of the phone and told her that she was barred from the store. Mrs. H left the store in a very distressed state and returned to the car. The Complainants left in their car but returned to the store a short time later as they still needed to purchase a phone on the Meteor network. Mr. H entered the store again and sought to purchase the phone but was informed that he was also barred from the store. Mr. H requested the Sales Assistant to confirm this in writing and was given a handwritten note confirming that Store Manager would not permit him to be served. Mr. H then left the store and has not returned following this incident.
The Complainants deny that they had shouted or caused a disturbance in the store during the incident and claim that the reason why they were refused service and subsequently barred from the store was directly related to the membership of the Traveller community.
Summary of Respondent’s Case:
The Respondent is a mobile telephone Retailer and operates a number of stores nationwide. Mrs. H came into the store on 8th July, 2016 and sought to purchase a mobile telephone handset on the Meteor network. Mrs. H did not have a number to upgrade so the Sales Assistant on duty advised her that she would have to purchase a new SIM card and would also require a top-up voucher of €10. Mrs. H agreed to the purchase the items. Mrs. H then left the store and went to her husband who was sitting in a car which was parked outside of the store. The Respondent’s Assistant Manager was also standing outside the store at that juncture when Mrs. H approached her husband, Mr. H. The Assistant Manager heard Mrs. H begin to tell her husband about the cost of the mobile phone and SIM card when he implied to her that she should have bought the phone on the Vodafone network as it was his current network and a new SIM card would not be needed. Mr. H asked Mrs. H to return the phone and gave out to her for spending more money on the extra credit.
The Respondent submitted that both of the Complainants became very loud and disruptive in the store and were therefore requested to leave. As the Complainants refused to leave, they were informed by the Respondent’s staff that they would contact the Gardai. The Store Manager then took a decision, on consideration of the other customers in the store, to override company policy and provide a refund for the credit voucher. By the time the Gardai arrived the Complainants had left the store.
The Complainants returned to the store on two further occasions on the same day and began shouting. The Complainants were advised by the Respondent’s staff not to return to the store. On each further visit, the Gardai had to be called again but Mr. H and Mrs. H had left the store before their arrival.
While the Respondent accepts that the Complainants were asked to leave the store, this request was strictly made due to them causing disruption within the store and was absolutely not made on the basis of their membership of the Traveller community.
Findings and Conclusions:
The Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 s/he can rely in asserting that prohibited conduct has occurred in relation to him or 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
The claims of discriminatory treatment in the present case are based on the events that took place during the course of the Complainants' visit to the Respondent’s store on 8th July, 2016. It was not in dispute between the parties that Mrs. H had been afforded service on her initial visit to the store on this occasion when she purchased a mobile telephone handset, a SIM card and €10 top-up credit. However, the precise reason and facts surrounding the Respondent's subsequent decision to request the Complainants to leave the store and to deny them further access to its services is very much in dispute between the parties in this case. The Respondent, on the one hand, claims that the Complainants engaged in disruptive behaviour in the store after they sought a refund in relation to the products which Mrs. H had purchased and as a result they were both requested to leave the store and advised not to return. The Complainants, on the one hand, deny that they engaged in disruptive or threatening behaviour during their interaction with the Respondent’s staff on this date and claim that the reason they were requested to leave the store was directly attributable to their membership of the Traveller community.
Therefore, the question that I must address in the circumstances of the present case is whether or not the Respondent's decision to request the Complainants to leave the store and to refuse them access to any further service was attributable to their membership of the Traveller community or was directly related to the disruptive and threatening behaviour which the Respondent claims occurred on 8th July, 2016.
In considering this issue, I have found the Respondent's evidence to be more compelling, and on the balance of probabilities, I am satisfied that the Complainants engaged in disruptive and disorderly behaviour in the store on the date in question which resulted in the Respondent taking the decision to request the Complainants to leave the premises and denying them further access to its services.
In coming to this conclusion, I have taken into consideration that both of the Complainants had been afforded service without any difficulty in the Respondent’s store on several occasions prior to the incidents that occurred on 8th July, 2016. I have also found the evidence of the Respondent’s Assistant Manager (who was present in the store on 8th July, 2016) to be very credible in relation to the events that took place in terms of the Complainants interaction with the Respondent’s staff on the date in question. I accept the Assistant Manager’s evidence that the Complainants had engaged in shouting and disruptive behaviour on this date and that the nature of these incidents was of such gravity that the Gardaí were called to the premises on a number of occasions. Furthermore, I accept the Assistant Manager’s evidence that neither she nor any of the other members of the Respondent’s staff on duty that day were aware of the Complainant’s Traveller identity and I note that both of the Complainants accepted that there was absolutely no reference or indication made about their Traveller status during the course of their interaction with the Respondent’s staff on the date in question.
Having regard to the totality of the evidence adduced, I am satisfied that the action taken by the Respondent on this date was invoked purely as a direct consequence to the Complainants’ disruptive behaviour and was in no way attributable to the membership of the Traveller community. Having regard to the foregoing, I find that the Complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller community.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Acts.
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 in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts. Accordingly, I find in favour of the Respondent in this case.
Workplace Relations Commission Adjudication Officer: Enda Murphy
Equal Status Acts, 2000-2015 - Direct discrimination, Section 3(1)(a) – Traveller community Ground, Section 3(1)(i) – Disposal of Goods and Services, Section 5(1) – Disorderly behaviour or conduct.