EQUAL STATUS ACTS 2000-2004
DECISION NO.: DEC-S2017-001
A MEMBER OF THE TRAVELLING COMMUNITY
A HARDWARE STORE
File Reference: ES/2014/0005
Date of Issue: 11/01/2017
HEADNOTES: Equal Status Acts - Member of Traveller Community –
1.1 This complaint was referred to the Director of the Equality Tribunal on the 23rd January 2014 under the Equal Status Acts. In accordance with powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, Louise Boyle, 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, 2000 to 2008.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
1.3 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 16th September 2016.
2. COMPLAINANT’S SUBMISSION
2.1. The complainant is a settled traveller and resides with his wife and several of his children and grandchildren in various houses in the same housing estate. The housing estate is adjoined to the respondent’s shop by a fence.
2.2. In or around 10th August 2013, the complainant called to the respondent’s shop to purchase paint. He has used the shop in the past and has never been refused service in there.
2.3. On this occasion the shop assistant told him that he would not be able to serve him or any member of his family.
2.4. The complainant replied that he had never done anything to deserve this and alleges that the shop assistant agreed with him. He said he was embarrassed as there were a number of people in the shop as well as staff members.
2.5. He denied that he was aware of the broken window incident before going into the shop.
2.6. He said it was not fair to refuse to serve him because of something his granddaughter’s boyfriend had done. He asked if it had been a farmer who had broken the window would all farmers be banned from using the shop.
2.7. The impact of this ban was that he had to endure a 10 mile trip to the nearest town and he is a man in his 70s.
2.8. He advised that later on himself and other family members asked the daughter’s boyfriend to leave the housing estate for causing trouble.
2.9. He feels that the only reason he was refused service is that he is a member of the travelling community.
3. RESPONDENT’S SUBMISSION
3.1. The respondent denies that any discriminatory acts took place.
3.2. It confirmed that the shop has been established since the 1990s and relocated the retail shop to a new site in 2004, adjoined to the housing estate that the complainant and many members of his family and extended family live in.
3.3. The respondent confirmed that the complainant and his family members were always welcome customers of the shop until 15 May 2013. On that night a fight took place in the car-park of the shop which resulted in the boyfriend of a granddaughter of the complainant breaking the shop front window, causing damage to the value of €500; €50 of which was subsequently paid following the conviction of the boyfriend.
3.4. The respondent alleges that some members of the Complainant’s family, who live in the estate called to the shop, including the complainant’s wife and daughter, and said that it was a row between the Complainant’s granddaughter and her boyfriend which had resulted in the glass being broken and that the boyfriend had broken the window.
3.5. The respondent said that the complainant’s wife said she would pay for the damage done.
3.6. The respondent confirmed that he had advised the group that all family members were barred from the shop until such time as compensation for the damage caused had been paid.
3.7. The respondent highlighted that they do not have a “no traveller” policy and that the barring relates specifically to the Complainant’s family or that it would relate to any family who had been engaged in such damage to his property.
3.8. The respondent did wish to highlight that they have served members of the Complainant’s family in times of exceptional need since this incident.
3.9. Evidence was given by the shop assistant who served the Complainant. He denied that he had said to the complainant that the complainant had done nothing to deserve being barred. He also advised that it was only staff and not customers who overheard the conversation.
3.10.Evidence was given by a County Councillor that he had assisted the respondent in negotiating with the council around the erecting of a fence around the premises as there was a problem with anti-social behaviour stemming from the housing estate where the complainant’s family resided.
3.11.Evidence was also given by a member of the Garda Siochana that he was on duty when the boyfriend of the complainant’s granddaughter was held in custody and that the boyfriend had admitted to breaking the window and was later prosecuted for the crime. This garda also confirmed that he knew of some incidents of theft from the grounds of the shop and he had called to the complainant’ family in their housing estate requesting items to be returned by some of the complainant’s grandchildren and they were returned.
3.12.It was confirmed at the hearing that the person convicted for the crime of breaking the window had subsequently repaid the full amount of the cost of the broken window. The Respondent confirmed that he would stick to his word and allow members of the complainant’s family to return to the shop again as the bill had now been paid fully.
4. CONCLUSIONS AND FINDINGS :
4.1. Discrimination is set down in section 3 of the Acts as:
“For the purposes of this Act discrimination shall be taken to occur—
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(I) exists,(ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,
4.2. First, I must assess whether the complainant have succeeded in establishing prima facie case of discrimination. In order to do so the complainant must satisfy three criteria in relation to his complaints. He must (1) establish he is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances.
4.3. In this case it is not a fact in dispute that the complainant is a member of the Traveller Community thus satisfying the first of the criteria outlined above. It is clear from the evidence that the complainant went to purchase paint in the shop and there was a refusal of service. This is sufficient to satisfy the second of the three criteria set out above. Regarding the third of the criteria, i.e. whether the treatment was less favourable than someone who was not a member of the Traveller Community would have received in similar circumstances; I must consider the evidence in its entirety. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
4.4. There can be no doubt that the complainant was very aggrieved at how he was treated by the respondent for something his granddaughter’s boyfriend did and that this ‘boyfriend’ was subsequently prosecuted for breaking the window. However, the respondent provided evidence of a number of incidents of damage which has occurred on his premises caused by people in the adjoining housing estate which houses many of the complainant’s family members. These incidents included bottles and stones being thrown over the wall that resulted in a high security fence having to be erected.
4.5. The respondent’s evidence was that this recent incident of the broken window was the final straw and that until he was compensated for the repair of that window, no member of the complainant’s family was to be served in his store. He said this would have been the same result regardless of whether the family involved was not a member of the travelling community. Despite the respondent issuing that decision he confirmed that he had served some members of the complainant’s family as a gesture of goodwill where there was an urgent need for them to purchase something.
4.6. I note that the complainant has said that he had been to the store several times prior to the broken window and had always been served.
4.7. Considering the evidence of all the parties to this complaint it is clear that a number of incidents of disorderly conduct by the Complainant’s family against the respondent had occurred. It has never been suggested that the complainant was in any way involved. Indeed the damage to the window was actually caused by a boyfriend of a member of the family who was asked to leave the housing estate. However, I consider on the basis of the evidence presented by both sides that the most recent event involving the broken window changed the ongoing customer-business relationship between the complainant and the respondent.
4.8. While the Complainant stated that he denied any knowledge of the broken window or any knowledge that members of his family were barred from the shop until the cost of the window was paid, I prefer the evidence of the respondent that he had advised some members of the complainant’s family, including the complainant’s wife, that once the window was paid for, he would allow the family to be served again.
4.9. This was reaffirmed by the respondent on the day who had recently received fully payment for the damage to the window from the boyfriend of the granddaughter of the complainant. I am satisfied that if any other family, who were not members of the Traveller Community, engaged in the same behaviour of damaging the respondent’s property they would have been treated in the same way. I therefore consider that it was not unreasonable under the circumstances to refuse the complainant service.
5.1. In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with Section 25 (4) of the Equal Status Acts I conclude this investigation and issue the following decision; that the complainant has failed to establish a prima facie case of discrimination contrary to Section 5 (1) of the Equal Status Acts and his complaint fails.
5.2. Accordingly I dismiss the complaint.
5.3. I have exercised my discretion to anonymise this decision