The Equality Tribunal
3 Clonmel Street
Equal Status Acts, 2000 to 2008
Equality Officer Decision
Ms Khedi Bisayeva
Westend Management Limited
File Ref: ES/2009/097
Date of Issue: 29 July 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 8 September 2009 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 26th November 2010 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 30 March 2011 and both parties were in attendance. Following the hearing, the complainant, who was unrepresented, requested the opportunity to make a written submission in response to the respondent's submission. As a result, there were a number of exchanges of documents between the parties and this process was concluded on 1 June 2011.
This dispute concerns a claim by the complainant, Ms Bisayeva ("the complainant") that she was discriminated against by the Westend Management (hereafter "the respondent") on the grounds of race in terms of Section 3(2)(h) of the Equal Status Acts, 2000-2008 in being refused a service, which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2008.
Summary of the Complainant's Case
2.1 The complainant is a Muslim woman, originally from Chechnya. She wears a headscarf and traditional clothing in accordance with her cultural tradition. By way of background she stated that she is often subjected to less favourable treatment as a result of her attire, which she believes is often mistaken for Roma by Irish people.
2.2 On 20th March 2009, the complainant was trying on shoes in Pavers, which is a unit in the Westend Retail Centre in Blanchardstown. A security guard approached her and spoke to her in English. She did not fully understand what he was saying because her English is limited, so she phoned her son, who was browsing in a nearby shop. The security guard escorted her out of the shop. At this point the complainant's son arrived and translated for her. He said that the security guard had been asked to tell her to leave. The security guard said that it was nothing to do with him and that he was just following orders. The security guard's Supervisor arrived at that point. Her son asked why his mother was asked to leave and he was told by the Supervisor that she had been involved in a previous altercation with the Supervisor in the Westend centre. This alleged altercation involved her younger son accusing the security guards of racism, while his mother stood by talking on her mobile phone. The complainant and her son denied this allegation and insisted it never happened. She tried to explain why it could not have been her son, but the Supervisor kept interrupting her. The Supervisor threatened to call the Gardai and the complainant and her son said they would be welcome to do so. They waited for the Gardai outside the shop, but the security guards became agitated and walked away. They went back into the shop and waited a little longer but nothing happened and they went home shortly afterwards.
2.3 The complainant claims that the alleged previous incident with her younger son never took place, and in support of this, she submitted to the Tribunal evidence that her son was on a school work placement at the material time. She also submits that the security Supervisor gave a completely incorrect description of her son. She submits that the real reason that she was asked to leave, was due to her ethnicity and appearance. She submits that she wears the traditional attire of her country and is therefore visibly non-Irish and a member of a minority ethnic group. She claims that while she has never been involved in any incident before, she is regularly followed very closely around the Westend shops by security staff, on account of her appearance.
2.4 The complainant submits that she was extremely embarrassed and humiliated by being forced to leave a shop which she regularly frequents. She submits that this incident had a bad impact on her health and she suffered raised blood pressure and migraines as a result.
Witness for the complainant - Mr Bisayeva, the complainant's son
2.5 The witness was in another store near Pavers when his mother called him, to say that there had been some sort of misunderstanding. She asked if he could come and help her sort it out. The witness arrived and spoke with the security guard. He said the security guard explained politely that his mother had been asked to leave because of a previous incident. The security guard said that he had been on holidays at the time of the earlier incident and couldn't give any details. The security guard said that he was just following orders and it was nothing personal. The witness accepted this, but insisted that his mother should be given a proper reason for being asked to leave. The security guard said that his boss told him, so the witness asked to speak to his boss. The Supervisor arrived, but did not introduce himself. He pointed to the witness and told him to keep out of it, as it was nothing to do with him. He said that the complainant was "not wanted" in Westend and had to leave. The witness asked who gave him the authority to make such a decision. The Supervisor said that there had been a previous incident with the complainant and her other son. The witness asked his mother if it could be possible that his brother was involved in an incident with her. His mother said no and asked the Supervisor to describe the other son. The Supervisor gestured that the man involved in the incident was small, so the witness explained that there must have been a mistake, as his brother is considerably taller. The witness realised at that point that there must have been a mistake and thought the matter could be easily cleared up. However he submits that the Supervisor was rude and ignored him. He stated that he then became angry because of the false allegations against his mother and brother, but he was not aggressive. He told the Supervisor that his behaviour towards his mother was unlawful and that this would not be the end of the matter. He asked him to apologise to his mother, who was very upset and shaking. The Supervisor refused and the witness said that he would go to the Citizen's Information Centre for advice. The Supervisor insisted that they should leave and the witness refused. The witness and his mother requested the names of the two security guards and these were provided. The Supervisor threatened to call the Gardai and the witness said that he would make the call himself, because he wanted the matter taken further. He understood that the Supervisor had called the Gardai, so he and his mother went back inside the shop to wait. Both Security guards left and the Gardai did not come. The witness and his mother left shortly afterwards.
Summary of the Respondent's Case
3.1 The respondent made some preliminary submissions. Firstly they submit that they are not a service provider within the meaning of the Acts. Secondly the respondent argues that they are the incorrect respondents and states that the complainant should have taken her case against Pavers shop, as it was the manager of Pavers who requested that she should be removed from the premises. In support of this they submit that it is their standard operating procedure that individual shop staff are responsible for what occurs within the shop and the respondent is responsible for the common areas outside. They only enter retail units at the request of the local management. In cases such as this, they require that the local manager first requests the customer to leave and if the manager is unsuccessful, then they may call security. In this case, they submit that normal procedure was followed; a named manager from Pavers asked the complainant to leave, she appeared not to hear and so the manager called for assistance. Therefore they submit that they cannot be held responsible for the action.
3.2 In the alternative, the respondent claims that the security staff were correct to ask the complainants to leave the store and that they were correct in maintaining their position, once outside. This was because the complainant had been recently involved in an altercation with the Supervisor and they were therefore entitled to tell her to stay away, to ensure that good order was maintained in the area.
3.3 Witness for the Respondent - A named Security Guard
The Security Guard gave oral evidence that he was on duty on the evening of 20 March 2009, when he was told by his supervisor to go to the Pavers Shop to provide assistance. The duty manager in Pavers told him that she had asked the complainant to leave, but that the complainant did not. The Security Guard approached her and asked her to leave twice. It was his impression that the complainant did not fully understand. He then told her that she had been asked to leave three times and turned to leave, assuming she had enough understanding to follow him. She followed him out and phoned her son, who arrived when they were outside the shop. Her son asked why his mother had been told to leave and the witness explained that the decision was made by the store manager. He submits that the complainant's son became very aggressive and angry, so he called his supervisor for back-up. His supervisor arrived and spoke to the group. The son asked for their names which they gave. His supervisor went back to the control room and he stayed out in the mall.
3.5 Witness for the Respondent - A named Security Supervisor
3.5.1 The Supervisor gave oral evidence that two weeks prior to the 20 March, another (named) retail unit had called him regarding the complainant. The security staff at this unit told him that there were two females in their store who appeared to be stealing items of clothing. The Supervisor went to this store, took a look round and then left. He waited outside for the women and observed them going into another shop, having left the previous shop without making a purchase. He went to the Security guard on duty in that shop and told him that there might be something suspicious about the women. While he was talking to this guard, a man approached him and asked why he was following his mother. The Supervisor responded that he was watching the whole mall, not any specific individual and that he had not accused the woman of anything. The man accused the Supervisor of mistreating his mother for racist reasons. The Supervisor said he would call the Gardai and the group left. He says the man must have been talking about the complainant, as she was the only one old enough to be his mother.
3.5.2 Regarding the incident of 20 March, the Supervisor was on duty in the control room of the retail park, when he received a call from Pavers. He submits that he sent the Security Guard down to deal with it and that he was called by him a few minutes later for help. He arrived, introduced himself by name and told the group that he was there at the request of Pavers. The man immediately began shouting at him and verbally abusing him, calling him a racist. He further submits that the complainant's son then placed himself eye-to-eye with the Supervisor and said "I can tell you have never been in prison". The Supervisor took this as an attempt to intimidate him. He threatened to call the Gardai. At this point the complainant stepped forward and he recognised her as the woman involved in the altercation from two weeks earlier. She also called him a racist. He was afraid there would be a physical altercation. Then things calmed down and he and his colleague gave their names to the complainant as requested. He went back to the office. The complainant and her son stayed in the shops a few more minutes and then left.
Conclusions of the Equality Officer
4.1 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, 2000 to 2008 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.
4.2 Preliminary Issues
4.2.1 It has been submitted that the named respondent does not provide a service to the public as defined under the Acts. I reject this argument on the basis that it is trite law that the Tribunal may hear cases on precisely this issue of security personnel preventing entry to or removing customers from the premises they are supervising.
4.2.2 Secondly they submit that the complainant is misconceived as against them. The submit that the correct respondent should be Pavers shop, as the security guards were only acting on orders received from the shop. However the Acts specifically cover this issue at Section 42(2), which defines vicarious liability:
"Anything done by a person as agent for another person, with the authority (whether express and implied and whether precedent and subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also (my emphasis) by that other person".
The respondent in this case was acting on the orders of their client, Pavers and I find that they fall fully within the above definition. Therefore while it may well be argued that the respondent does not bear the full burden of responsibility for the alleged discrimination, they may still be held liable under the Acts for their part in the matter. A similar issue was addressed in the Equality Tribunal decision DEC-S2008-54 Jordan v Marsh, which concerned an outsourced administrative agent, who was found to have implemented discriminatory treatment, on behalf on an insurance company, as against a customer of the insurance company. The agent in question did not set the rules for the policy; they merely implemented them. However the fact that they were the agent, rather than the principal, was insufficient to absolve them of liability for the discrimination, although it was considered a mitigating factor in terms of the quantum of compensation. I find the instant case has many similarities and while it may be argued that the complainant should have also taken her case against the shop, she is not prevented from pursuing the respondent security company.
4.3 It is agreed between the parties that the complainant was asked to leave the shop. The first security guard presented as a relatively credible witness, whose account of the events mostly corresponded with that of the complainant's son. I accept that he was requested by his boss, on foot of a call from Pavers to ask the complainant to leave the shop. When he was challenged by the complainant's son, he called his Supervisor to explain the background to the issue.
4.4 The reason for the ejection is disputed between the parties. The complainant claims it is due to her ethnic appearance. The respondent claims it was the store management's decision to eject her. They further submit that that they recognized her due to the alleged previous incident. The following has been submitted in support of this alleged incident:
- The oral evidence of the Supervisor, who said that the complainant's son had previously accused him of being a racist. Initially he said the son was small and then he said that he was tall when the complainant explained that it could have not been her son. The Supervisor's version of events during the oral hearing was inconsistent and lacked credibility.
- The oral evidence of the Supervisor that the complainant had been involved in a previous incident in another store, where she had been suspected of trying to steal children's clothes. The hearing was the first time this incident was mentioned and it was not referred to in the earlier submissions or statements.
- The written statement from a security officer at another store in support of their claim that the complainant was involved in a previous incident. This statement is of no value to the investigation as provides no details (dates, names, descriptions, etc) to connect it in any way to the complainant or the incident in question and even the statement itself is undated.
Therefore, based on all of the above, I cannot accept that any previous incident with the complainant, as described by the Supervisor, ever took place. I also note that once the parties were outside, the security staff did not act in a manner consistent with their claims. If the Supervisor genuinely believed that the complainant's son was behaving in a dangerous and threatening manner and that his mother was a potential shoplifter, I find it highly unlikely that he would allow them to re-enter the store and then just wander back to his office. I find it more likely that he realised his mistake and simply walked away without explanation to the complainant or her son. Overall I found that the complainant's son gave the most convincing account of what happened.
4.5 Additionally I note that the respondent has offered no explanation as to why the shop manager initially wanted to eject the complainant. The complainant claims that the initial reason she was singled out for ejection was on account of her ethnic appearance. She claims that she was then further discriminated against by the Security Supervisor who insisted she was a trouble-maker, again purely on account of her appearance. In considering the matter, I have noted the Labour Court's views expressed in Ntoko v Citibank EDA045. Here the court referred to the high level of protection offered by the Race Directive 2000/43/EC and it recognised that direct evidence of discrimination on grounds of race is often very elusive; therefore, when a claimant establishes facts from which discrimination may be inferred it is for the respondent to prove that there has been no infringement of the principle of equal treatment. This Labour Court decision refers to a case under the Employment Equality Acts,; however the Race Directive also covers goods and services and therefore I find the court's reasoning both relevant and persuasive. In the instant case, it is clear that clear that the complainant's attire distinguishes her as a member of an ethnic minority. The complainant also established as a matter of fact that she was subjected to less favourable treatment than other shoppers in the centre, by being asked to leave. The respondent has offered no convincing or credible explanation for either ejecting the complainant or for subsequently insisting that she was barred from the Westend Retail Centre. Therefore there remains only the discriminatory explanation; that the complainant was told to leave because she was clearly a foreign national who was wearing a headscarf associated with her ethnic background.
4.6 I therefore find that she has established a prima facie case of discrimination on the race ground and the respondent has failed to rebut it.
5.1 On the basis of the foregoing, I find in favour of the Complainant and award her €1,500 for upset and humiliation suffered as a result of the discrimination. The following factors have been taken into consideration in the value of the award:
- That the original action was that of an agent only (the respondent implemented, but did not make the decision to eject the complainant).
- That the Security Supervisor contributed to the discrimination by falsely accusing the complainant of being involved in an incident previously and by insisting that she was barred from the whole shopping centre.
29 July 2011