ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056411

Parties: 

Complaint:

Date of Adjudication Hearing:  07/01/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.  As the Complainant in this case is a Minor, I have exercised my discretion and anonymised the decision as appropriate and as in Section 14 (b) of the Workplace Relations Act 2015 (as amended).

Background:

The Complainant is a minor, suing by her mother who alleges that she was discriminated against on the ground of membership of the travelling community during an incident which occurred on 17 July 2024.  The Respondent was notified in a letter dated 8 August 2024 of the detail and the intention to take proceedings to the WRC under the Equal Act 2000.

Summary of Complainant’s Case:

The Complainant’s complaint is that she was discriminated against on the ground of being a member of the Travelling Community.  She was part of a group of children who travelled by bus during the summer of 2024 to the Respondent’s farm and shop. When she was in the shop she was accused of not paying for sweets.  She was part of a group of Travellers from a Traveller Group in a neighbouring county.

The Complainant gave direct evidence and was cross examined by the Respondent’s solicitor

The Complainant stated the following:

“In the summer, between 4th and 5th class, I went by bus to the farm, got off the bus.  I was with my cousin and we went into the shop to buy 2 slushies and a few sweets.  We came out and then went back to get something else.  When I paid for the slushie, the girl behind the counter said “what about the other sweets?”  I said “I paid for them”.  The girl kept asking and then she asked another girl who was serving, “did you take for the sweets?”  That girl said “no I didn’t”.  The first girl then said “stand there, don’t move”.  Then a girl with blond hair came in and I said “that’s her, that’s the girl who served me”.  I was standing there for a while and I felt upset and scared and I didn’t know what I had done wrong.  After that I went out to see the animals to get my head straight”.

The Complainant said that Youth Worker T asked her what was wrong and when she told her, they went back into the shop.  “They hadn’t said sorry to me but when T came in with me there was a different attitude”.

In cross examination, the Complainant stated that 3 times the shop assistant said to her (about whether she paid for the sweets) “I don’t think you did”.  When the solicitor told her that the whole incident lasted just seconds, she said it seemed like a lot longer to her.

Youth Worker T gave evidence summarised as follows:

She accompanied a group of 20 children from the Wicklow Travellers group on the day.  The ratio was generally 1:8 Youth Worker to children.  Their role was generally to look after things and help smaller children manage their money etc. She was there in the aftermath of what happened in the shop on 17 July 2024.  The Complainant and her cousin came out of the shop and were clearly upset.  She found out what happened and went back into the shop and told them they should apologise to the young girl.  They eventually gave an apology but not easily. 

Evidence was given by the Complainant’s mother.  She stated that her daughter was very upset by the incident.  She was embarrassed and upset and believed that she was treated that way because she was a Traveller.  The following day, she would not go into a shop in a garage as she felt they would accuse her of theft.  She rang the farm shop the next day to complain and the owner said it was no ‘big deal’ and he couldn’t believe she would go to a solicitor about it. 

Summary of Respondent’s Case:

On behalf of the Respondent the following written submission was made:

The complaint is made on the basis of discrimination. In the letter that predated same it is stated that the Complainant was discriminated against on the basis that she is a member of the travelling community. This allegation is factually incorrect.

Whilst it is acknowledged that discrimination by virtue of being a member of the travelling community is one of the grounds of claim under the Equal Status Act, 2000, in the instant case the Respondent was not aware not actually nor constructively of this fact, indeed no evidence has been furnished to date to confirm same.

Discrimination means treating a person unfairly because of who they are or because they possess certain characteristics. No evidence has been adduced by the Complainant to ground this premise.

The Applicant was asked a question and responded to same, there was no suggestion or inference that in doing so the Applicant was treated differently.

A copy of CCTV footage of the shop dated the 17th of July was submitted.

Statements from staff serving in the shop on the day were submitted and evidence was given as follows:

Employee A

I was working in the coffee shop yesterday morning the 17th July 2024. It had been a busy morning as we had a large group in and I was serving the customers on the sweet counter. A young girl and her friend were in the shop and there was another woman with them with 3 kids. A girl came up to the counter and she had a packet of sweets and a slushie. I asked the girl if I was to take for these and she said that she had already paid. I then asked with C if she had taken payment. C said that she had sold slushies but no sweets yet today. The girl turned to the woman that was with her and said “They are accusing me of stealing”, which was not the case we were simply checking things with each other. I told the girl and the woman this immediately and that it was a usual thing we did. C and I assured her straight away that she was not being accused of anything at all. The girl pointed to A who had just returned from the back room and said that she had paid her and A immediately said yes that she did. The girls and the woman left the coffee shop and a few minutes later 2 women, leaders of the group, came in with the girl to say that the girl was upset that she never got an apology. We explained to the leader that there was no accusation ever and we had just asked a question. The leader tried to say that the girl felt discriminated against and left to stand for ages but we said no that it was a quick check between employees and we do checks all the time and there was never any discrimination. The girl left the coffee shop and after buying a few things the women also left and went back out to the farm with other children.

Employee C

I was working in the coffee shop today. This morning A turned and asked if I had taken payment from a girl for slushies and sweets. I told her I had only taken payments for slushies yet but I hadn’t sold any sweets. The girl was with a woman and another girl and she said to the woman that we had accused her of stealing. A immediately said no that we weren’t accusing anyone of anything. We were just asking a question. The girl pointed to H who was just walking back in and said that she paid her. H said that this was right. The girl was part of a large group booked in that day and she left with her friend and the other woman and everything was fine. A little while later 2 women came into the shop with the girl and another child and I think they were leaders with the group. They said that the girl was upset and that we felt we discriminated against her and accused her of stealing. We explained what happened and they said we had made her stand in the shop. We said that we did not and she wasn’t accused of anything and no one had said anything about stealing except for the girl. We told the girl that there was no accusation and are sorry if she got upset at our question. The girl went back outside and the women had a conversation and then came up to buy more things. They then went back outside to the farm.

Employee H

I was working in the coffee shop on the 17th July 2024 on the sweet counter and had assisted a little girl at the counter. I had gone out the back to get ice for our freezer so I wasn’t there when the girl came back in with her friend. She had the products that she already purchased in her hands. When I came back into the coffee shop the girl pointed to me as the girl who had served her and I confirmed this immediately. We often check with each other if someone has paid or who has taken payment for items as there are many of us working in the shop. The girl left the shop with her friend and a woman and everything was fine and we went back to serving customers. A few minutes later the girl came back in with a woman and another woman followed them with a child. One of them told us that the girl thought she was being accused of stealing and felt discriminated against. We all assured her that it was a normal check and she said that the girl hadn’t got an apology. We told the girl we never meant to make her feel any type of way at all and we would never discriminate against a person. The girl then left the coffee shop. The two ladies spoke to each other at the other side of the coffee shop and then came back to the counter with other children to buy slushies.

Findings and Conclusions:

The Equal Status Act 2000 (as amended) prohibits discrimination as between any two persons on the following grounds as contained in Section 3 (2) of the Act as follows:

• (a) That one is a woman and the other is a man (in this Act referred to as “the gender ground”).
• (b) That they are of different civil status (in this Act referred to as “the civil status ground”).
• (c) That one has family status and the other does not (in this Act referred to as “the family status ground”).
• (d) That they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”).
• (e) That one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”).
• (f) That they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).
• (g) That one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).
• (h) That they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).
• (i) That one is a member of the Traveller community and the other is not (in this Act referred to as “the traveller community ground”).

In this instant case, in relation to her membership of the travelling community, the Respondent put forward the case that “the Respondent was not aware not actually nor constructively of this fact, indeed no evidence has been furnished to date to confirm same”. 

Burden of Proof

Section 38A of the Act provides:

38A.—(1) 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.

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows:

In the within complaint, the Complainant’s representative submitted that the Complainant's evidence clearly establishes facts from which it can be presumed that prohibited conduct has occurred contrary to the Act.  

The Respondent disputes that the Complainant was subjected to any wrongful treatment of the kind alleged (whether amounting to discrimination or otherwise) and that she failed to produce evidence from which it could properly be inferred that such treatment related to her membership of the travelling community. 

I find that the Complainant is quite obviously a member of the travelling community and I do not accept as valid the Respondent’s position that no evidence has been furnished to confirm same.  I find that the Complainant established facts such as the questioning she was subjected to on the day that did lead to an inference of discrimination.

The substantive case

The Complainant gave clear and honest evidence that she returned to the shop, bought an item and was asked what about the other items she had in her hand.  She said when she said she paid for them, the shop assistant said I don’t think you did and then proceeded to check with another shop assistant.     I find this establishes the primary fact in this case that she was at least questioned about the matter and it appears that her word was doubted.  This fact is of significant value in ascertaining whether the alleged discrimination occurred. I note there were 20 children, members of the travelling community visiting the farm and shop on the day.   I do not accept the Respondent’s position that they were not aware of the Complainant’s status of being a member of the travelling community, nor do I accept that the Complainant was questioned in the normal course of events about whether or not she paid for items in her possession on the day.

I accept the Complainant’s evidence in total in this case.  The onus of proof then lies with the Respondent to prove that no discrimination took place.  I have considered the evidence of the Respondent’s 3 shop assistants.  While I find that they gave evidence in a reasonably honest manner, the essential fact of the allegation that the Complainant made of having been effectively accused of not paying for items has not been successfully rebutted.   I find the complaint is well founded.

Decision:

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.

Based on the findings and conclusions above, I have decided that the complaint is well founded and  I order the Respondent to pay to the Complainant the sum of €8,000 for the effects of the discrimination suffered. In reaching my decision on the quantity of redress, I have taken into account the Von Colson principles (Von Colson and Kamann 1984) that sanctions must be effective, proportionate and dissuasive.

Dated:   12/02/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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