THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DSG Retail Ireland Limited t/a Currys Superstore Limerick
(Represented by Mason Hayes+Curran, Solicitors)
File Ref: ES/2008/0067
Date of Issue:31st May, 2010
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1) - Discrimination on the race ground, section 3(2)(h) - Supply of goods and services, section 5(1) - Harassment, section 11.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 29th May 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 1st April 2009. The hearing of the case took place on the 15th April 2010 and the final correspondence was received on the 10th May, 2010.
2.1 This dispute concerns a complaint made by the complainant that she was discriminated against by the respondent on the Race ground contrary to the Equal Status Acts in terms of sections 3(1)(a), 3(2)(h) and contrary to section 5(1) of the Equal Status Acts. She also alleges that she was harassed contrary to section 11 of the Equal Status Acts.
3. Summary of the Complainant's Case
3.1 The complainant, Ms. Margaret Williams, is a Nigerian national who had been living in Ireland for approximately 5 years at the time of the alleged incident. She claims that she purchased a Matsui television from the respondent on the 13th March 2008 and within a few days she noticed a fault with the television in the nature of a background noise. She claims that she contacted the respondent by telephone and outlined the problem where she claims it advised her to return the product to the store as soon as possible.
3.2 She claims that she returned to the respondent's store on the 20th March 2008, where the customer service assistant she met with offered to exchange the television for another. The complainant claims that she sought to get another brand as she was unsure if the fault would replicate on the Matsui brand again. However, she claims there were no other televisions within the same price range. Accordingly, she sought a complete cash refund. She claims that the customer service assistant only offered her vouchers to spend in a Currys store. She claims that this was not acceptable to her as it restricted her choice to Currys, also she stated that she had only bought the television a few days previously and she wanted a cash refund. At that stage she claims that the manager, Mr. A, was called to deal with her. She claims that Mr. A instructed another staff member Mr. B to carry out tests on the product to establish the fault and then "just walked away". The complainant claims that she had to follow Mr. A to ask him how long the process was going to take, where she claims he replied, "as long as it takes", she also claims that he also told her that if she needed to leave she could go and that there was no need for her to call as he would contact her once everything was done. She claims that she left confused as she did not know what to do next. She claims that while she was waiting in the store on that day, she noticed a number of people coming in with various products requesting refunds. She claims that they were all dealt with promptly and were given a refund.
3.3 The complainant claims that she left the store on the understanding that the respondent would be in contact with her. However as the respondent made no contact with her in the following days she called and emailed the respondent's customer service department, which is based in the United Kingdom, to complain. She also claims that she sent a letter on the same date to the respondent's store in Limerick. Again as no contact was made she decided to register a complaint with the Small Claims Court to recover her money. She claims that it was after registering this complaint that she received a call from Mr. A who invited her into the store to get a refund. She claims that it was somewhat convenient that suddenly Mr. A was able to locate a contact telephone number and was able to make contact with her.
3.4 The complainant, when questioned by the respondent at the hearing, did agree that she had reported that the television switched itself off intermittently on the 20th March 2008, yet she maintains that she also reported that the background noise was a problem with the television. Also, Ms. Williams accepts that she did not leave the original receipt nor did she leave any contact details with the respondent on the 20th March 2008. Ms. Williams also agrees that she eventually received a full refund for the money paid, even though the respondent claims that no fault was found with the television and that the refund was paid contrary to the respondent's Returns, Cancellations and Faulty Goods Policy.
3.5 The complainant claims that she was treated unfairly, unjustly and discriminated against by the respondent because of her race, she also claims that an Irish person would not be treated the same way.
3.6 The complainant also claims that the treatment that she was subjected to amounts to harassment on the grounds of her race.
4. Summary of the Respondent's Case
4.1 The respondent, DSG Retail Ireland Limited t/a Currys Superstore Limerick, has operated a retail store in Limerick for approximately 6 years. The respondent does not contest that Ms. Williams did purchase a television from it on the 13th March 2008 and sought to return it on the 20th March 2008. It claims that on the day of the return she met with a customers service assistance who claims that Ms. Williams first asked to exchange the television for another television but when she was told that she was not allowed to exchange it just because she changed her mind, she then reported that there was a fault with the television and that she wanted a refund. It claims that the customers services assistant then called Mr. B to carry out tests on the television to establish the fault. In oral evidence Mr. B stated that he was informed that the "television set switches itself off intermittently", he claims he does not remember any mention of a problem with a background noise. He claims that he proceeded to test the product and explained to the complainant what he was doing.
4.2 The respondent claims that the complainant was unhappy that her refund was not being processed straight away and that she had to wait. In evidence both Mr. A, the deputy manager, and Mr. B claim that they informed the complainant that they would have to establish the fault before the exchange or refund could be completed. The respondent presented its Returns, Cancellations and Faulty Goods Policy in evidence, and highlighted the conditions in relation to both returning a product when a customer is not satisfied with it and when a product is returned due to a fault. In particular, it highlighted situations where a fault is reported and the respondent's right to inspect the product and verify the fault. It further submits that the complainant is not just entitled to a refund of the product simply because she has changed her mind, particularly where a product has been removed from its packaging and had obviously been used. However, she would be entitled to a refund or exchange once a fault was established within a certain time limits from the time of purchase.
4.3 The respondent claims that while the product was being tested both Mr. A and Mr. B returned to their duties of the day. They continually checked to see if the fault replicated itself and after a time noticed that the complainant had left the shop without leaving her contact details. The respondent claims that the television was tested over the next few days and no fault was found. It claims that as it did not have contact details for the complainant, it repackaged the television and left it behind the customer service counter for her return. The respondent maintains that in cases where a product is required to be left into the store for testing or repair, it is booked through its system and the customer receives a docket which will allow him/her identify and reclaim the product on their return. The respondent maintains this allows it manage the items left in to its shop at any one time. Mr. A claims that it is entirely unsuitable to have items left into the shop where it does not know the identify of the owner. Accordingly, he disputes Ms. Williams version of events in relation to her statement where she claims that he said that she could go and no contact details were required. He claims that he asked Ms. Williams to wait on in the store on the day in question.
4.4 The respondent claims that it never received any contact from the complainant in relation to the television until it received a telephone call from someone claiming to be ringing from the Small Claims Court on behalf of Ms. Williams. The respondent claims that it was at this stage that it identified Ms. Williams as the owner of the repackaged television which was left behind its customer service counter. The respondent claims that it agreed to allow the respondent exchange the product and having taken the contact details for Ms. William from the representative from the Small Claims Court made contact with the complainant. It claims that Ms. Williams was not satisfied with an exchange and accordingly, the respondent decided to grant a full cash refund for the money paid as a customer service gesture of goodwill towards the complainant, even though it was not obliged to do so under the terms of its Returns policy.
4.5 The respondent claims that it never received a letter of complaint from the complainant and it notes that from the evidence presented by her, that the email address that the complainant used to send a letter of complaint to its customer service department in the United Kingdom contained a spelling error and was therefore a wrong email address which would explain as to why she never received a reply to her complaint.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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.
Discriminatory Treatment- Race Ground
5.2 I am satisfied and it has not been disputed by the parties that the complainant bought a television from the respondent on the 13th March 2008 and sought to exchange it at the respondent's premises on the 20th March 2008 after reporting a fault with the product. The question before me for consideration is to determine, from the evidence presented, whether the complainant was treated less favourably than another person would have been in a comparable situation on the basis of her race, in relation to section 3 and contrary to section 5 of the Acts.
5.3 I am satisfied that the essence of the complaint centres around two specific time periods, firstly the complainant's visit to the respondent's store on the 20th March 2008 and then the subsequent period of time prior to her receiving a refund.
5.4 Having considered the evidence of both parties it is obvious that there was a delay in dealing with Ms. Williams request for a refund on the 20th March 2008. I note the positions of the parties and their conflicting recollection of what was said on the day. However, I am satisfied that the respondent was within its right to establish the fault reported by the complainant as set out in its Returns policy and I am satisfied that this was not motivated by malice or obstinacy on the part of the respondent but rather a genuine attempt to follow its procedures.
5.5 Frustrating as it may seem to the complainant in having to wait that day, I am satisfied that this was normal procedure when a fault is reported and the fault is not self-evident. I am satisfied that the respondent's procedure was not unfairly invented in this case to target Ms. Williams. I note that Ms. Williams did not leave her contact details before she left the store on the day and that the product was tested for a number of days where no fault was established. I note the corroborative evidence of the respondent's witnesses, which I am satisfied is a very credible account of the complainant's visit to the respondent store on the 20th March 2008, which I find to be more convincing. Accordingly, I am satisfied that there was no evidence adduced that shows that the complainant received less favourable treatment in relation to her visit to the respondent's store.
5.6 In relation to the complainant's subsequent wait for contact from the respondent, I am satisfied that as no contact details were left that the respondent was in a difficult position to determine the owner of the television. I note the respondent's evidence that that it did not get Ms. Williams's letter of complaint and that the email to the customers service department in the UK was sent to a wrong email address. I also note that the complainant did not call into the store or telephone the store directly to complain and it was only when Ms. Williams went to the Small Claims Court, and the respondent was given Ms. Williams telephone contact details that the respondent was able to make contact with her and eventually come to a mutual agreement of a refund. I note the complainant received a full cash refund which I am satisfied is what she initially sought. I am satisfied that the complainant has failed to identify where she received less favourable treatment not to mind less favourable treatment because of her race. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her race within the meaning of the Equal Status Acts.
5.7 The matter for consideration here is whether the complainant was harassed by the respondent within the meaning of section 11 of the Equal Status Acts. The appropriate provisions of the Acts are set out below.
11. -- (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (''the victim'') where the victim --
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) A person (''the responsible person'') who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
(4) A person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
(5) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.8 Mr. A vehemently denies that he engaged in any such behaviour that would amount to harassment in any of his interactions with the complainant. I have noted the corroborative evidence adduced from the respondent's witnesses and the fact that the complainant has not presented any instances or evidence that would suggest the occurrence of any inappropriate behaviour contrary to this section of the Act. Based on the evidence adduced, I have found the evidence of Mr. A to be more compelling in relation to this issue and I am satisfied that he did not engage in any behaviour during the course of his exchanges with the complainant which could be construed as harassment within the meaning the Acts. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of section 11(5) of the Equal Status Acts.
6.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
6.2 I find that the complainant has failed to establish a prima facie case of discrimination on the race ground in terms of sections 3(1), 3(2)(h) and contrary to section 5(1) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
6.3 I find that the complainant has failed to establish a prima facie case of harassment on the race ground in terms of section 11(5) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
The Equality Tribunal
31st May, 2010