ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022921
Fergus Kinsella, Cooke & Kinsella Solicitors
Eoin Gallagher BL
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 06/11/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on June 25th 2019 and, in accordance with Section 25 of the Equal Status Act 2000, it was assigned to me by the Director General. I conducted a hearing on November 6th 2019 at which I gave the parties an opportunity to be heard and to set out their respective positions in relation to the complaint. The complainant was represented by Mr Fergus Kinsella of Cooke and Kinsella Solicitors and the respondent was represented by Mr Eoin Gallagher, instructed by Tarant and Tarant Solicitors. Mr Andy Fleming is the business owner and he attended the hearing and gave evidence.
Ms Connors was a regular customer at Elaine’s Launderette and on Tuesday, January 29th 2019 she went there after she dropped her children to school. Ms Connors’ complaint is that on the day in question, she was discriminated against because she is a member of the traveller community. She said that the owner refused to provide her with a service at the launderette and that he told her and her “kind of people” not to come to his shop.
Summary of Complainant’s Case:
In her evidence at the hearing, Ms Connors said that she was a customer of Elaine’s Launderette for more than a year and that she knew the person who worked there and that they got on fine and generally chatted about the weather and were friendly. For convenience in this document, I will refer to the person in charge of the shop on the day as “Mary.” Ms Connors said that most weeks she brought in two bags of laundry and the price was €20 for each. When she left her laundry in in the mornings, she would collect it later that day or the following morning.
On the morning of January 29th last, Ms Connors said that she went to the launderette and Mary said it would be €40 for two bags of washing. She paid Mary €40. One of her bags was still in her car and was ripped and Mary gave her another bag and she went out to her car. Ms Connors said that she went back into the shop with the second bag and, by that stage, the owner, Mr Fleming was in the shop and he told her to “take your washing out of the shop.” She said he threw her money into her bag. She said that he accused her of bullying his staff and that he said, “tell your people not to come back here.”
In her evidence, Ms Connors said that Mr Fleming pretended to call the Gardaí, but she called them herself and a Garda arrived at the launderette in a few minutes. she said that the Garda asked her if Mr Fleming had called her a tinker or a traveller. She said that she told the Garda that he told her to tell her people in the traveller community not to come to his shop.
Summary of Respondent’s Case:
For the respondent, Mr Gallagher said that, on the morning in question, Mr Fleming received a phone call from Mary in the laundrette saying that a regular customer, Ms Connors, was “haggling over the price of a bag of laundry.” Mr Fleming gave evidence and he said that the traveller community were regular customers and that he valued their custom. He said that the policy in the shop is to weigh bags of laundry and to charge by weight. Ms Connors’ practice was to bring in one bag which would be weighed, and when the price was confirmed, say for €20, she would start haggling for a reduction. She would then bring in a second bag with more in it than the first and she would argue when she was charged more for the heavier bag.
On the morning of January 29th, Mr Fleming said that when Mary phoned him, he drove to the shop and when he arrived, Ms Connors was at the boot of her car packing laundry into a black bag. He said that she was stuffing the washing into the bag. Mr Fleming said that Ms Connors went into the shop and Mary told her that it would be €25 for the second bag if washing. Ms Connors said something like, “no way, you’re ripping me off.” Mr Fleming said that he asked Ms Connors if she had a problem and she said again, “I’m being ripped off here” and she said that she would phone her husband. Mr Fleming said that he asked Mary for Ms Connors’ money and he gave it back to her and told her to go to another launderette. He then went outside and sat in his car and Ms Connors stood in front of his car, preventing him from driving away. He said that he phoned the Gardaí and a Garda arrived in about five minutes.
Mr Fleming said that he clearly told Ms Connors to take her business elsewhere, but he said that he made no reference to travelling people and he did not say, “tell all travelling people not to come.” He said that since this altercation, travellers no longer come to his shop and, up to then, they had been regular customers.
Findings and Conclusions:
The Legal Framework
Discrimination is defined at section 3 of the Equal Status Act as follows:
(1) 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which -
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) where a person who is associated with another person -
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or
(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Subsection (2) sets out the discriminatory grounds, one of which, at subsection (2)(i) is;
(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).
In accordance with the objectives of the Act, the public has a right to access the services of the respondent’s launderette without being discriminated against on any ground. Section 5(1) addresses this right:
A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.
My task here is to consider the decision of Mr Fleming to discontinue the provision of a laundry service to Ms Connors, a member of the traveller community, and, to decide if, on the basic facts, a presumption of discrimination can be shown.
No Dispute about Certain Facts
From the evidence of both parties at the hearing of this complaint, the undisputed facts are as follows:
Ms Connors is a member of the traveller community and she was a customer of Mr Fleming’s business, Elaine’s Launderette, for more than a year.
On January 29th 2019, Ms Connors came to the shop with the intention of getting two bags of laundry done. One of her bags was ripped and when she got a new bag from Mary in the shop, she went out to her car to pack her washing into the bag.
When she brought the second bag into the shop, Mr Fleming refused to provide her with a service and told her to take her business elsewhere.
A member of the Garda Síochána arrived at the premises on the morning of this incident and Ms Connors told the Garda that Mr Fleming said that she and her people in the traveller community were not to come back to his shop.
Facts in Dispute
Mr Fleming said that Ms Connors argued about the price of the second bag of washing, whereas Ms Connors said that she paid €40 to have the two bags washed.
Mr Fleming said that he told Ms Connors to leave the shop, but he denied that he made any reference to the traveller community or to Ms Connors’ people.
Ms Connors was a regular customer at Elaine’s launderette, and, in accordance with her own evidence, she had been going there every week for more than a year. It seems irrational to me that, after more than a year of doing business with her, Mr Fleming would discontinue providing a service for Ms Connors, because she is a traveller. Something must have occurred on the morning of January 29th, other than Ms Connors ethnicity as a traveller, to cause Mr Fleming to tell her to take her business elsewhere.
Ms Connors’ own evidence is that one of her laundry bags was ripped and she got a new bag and brought it out to her car to fill it. When Ms Connors presented the second bag to Mary, there was no way of knowing how much was in the bag until it was weighed. The fact that the second bag was presented after the first bag, leads me to accept the evidence of Mr Fleming, that there was an argument about the price of the second bag of laundry.
From my assessment of the evidence presented by both parties at the hearing, I am satisfied that the reason Mr Fleming told Ms Connors to take her business to another launderette, is because she created hassle about the price she was being charged. No evidence has been presented to show that Mr Fleming didn’t want to do business with Ms Connors because she is a traveller.
I find therefore, that Ms Connors has not established grounds from which it may be presumed that discrimination has occurred. For this reason, the burden of proving that discrimination has not occurred does not shift to Mr Fleming.
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 Act.
I have decided, based on the facts and the evidence presented by both parties at the hearing, that there is no substance to this complaint of discrimination. Therefore, the complaint fails.
Dated: 27th November 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Discrimination, membership of the traveller community