The Equality Tribunal
Equal Status Acts 2000-2011
(represented by Seamus Clarke BL)
File Reference: ES/2011/0174
Date of Issue: 18th September 2012
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Section 3(2)(h) - race, , Section 5(1) - discrimination in relation to access to a service, Section 11 harassment, prima facie case.
Delegation under Equal Status Acts, 2000-2011
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 30th November 2011. On the 29th May 2012, in accordance with his powers under section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 this date my investigation commenced. A submission was received from the complainant on the 10th of May 2012 and from the respondent on the 3rd July 2012. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 12th July 2012 and the final documentation was received on the 10th September 2012.
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the race ground in relation to access to a service in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status and contrary to Section 5(1) of that Act in that he could not purchase stamps at any value other than at the regular postage value at the GPO. He also claims that he was harassed contrary to Section 11 of the Acts.
2 Complainant's Case
2.1 The complainant is from Lithuania and he submits he was discriminated against and harassed when he could not buy postage stamps in the denominations he wished. He said that he collects old European stamps and his friends outside Ireland like to get nice stamps. He said that he was a regular customer of the respondent and purchases stamps every week. On the 4th of June 2011 he was sending a package by registered post to his philatelic correspondent in the USA. He had some stamps already on the package and he wished to buy a 77 cent stamp to make up the shortfall in the cost of posting his package and the philatelic shop was closed. He went to the counter and the assistant refused to sell him a stamp for 77c. He was informed that only stamps to the value of 55c or 82c were available. He said that he knew that the counter assistant could print off any value of stamp required and when he queried the refusal the counter assistant agreed that he could print stamps, but he continued to refuse to sell him a 77c stamp. The complainant said that he finally got to post his package at the registered post counter and the clerk there put a label on his package instead of a stamp. The complainant said that he was disappointed he could not fulfill the request of his philatelic friend and put a nice stamp on the package. The complainant outlined other incidents on the 22nd June and the 23rd June where he was refused stamps to the value of 23c, 32c and 50c. He was told on the Post Office only sold stamps to the value of 27c, 55c and 82c. He submits that this is incorrect as he asked an Irish couple to buy him stamps in another PO and they bought him four 23c stamps without any difficulty.
2.2 The complainant submitted that he was discriminated against by the respondent in that the respondent knew him well from coming into the P.O. and refused to sell him stamps in the denominations he required and he believes this happened because of his race. He further submitted that he was harassed. He said that when the counter assistant refused to sell him the stamps and he was harassed and intimidated by the behaviour and tone of voice of the counter assistant who also refused to give their name. He accepted that there were new rules in relation to the P.O. selling stamps on a roll (SOAR) but he believes that these rules were only introduced after he was discriminated against and in any event he could purchase stamps in any denomination he wished in the other P.O.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated on the race ground or that he was harassed. Up until 2010 the respondent sold stamps in 23 different denominations and in May 2010 they converted from sheets of stamps to an automated system whereby stamps could be printed off in any denomination. This is known as stamps on a roll (SOAR). It was submitted that this was a new and revolutionary process and there was a lot of interest in the stamps. Then they noticed that they had requests for stamps in small denominations, for example, six hundred 1c stamps and it took a lot of time and resources to print these stamps. They then noticed that the 1c stamps were being sold on the internet for about €8 by collectors. In order to protect their revenue the respondent decided to formulate a new SOAR policy. A customer wishing to purchase a stamp other than 55c or an 82c to make a shortfall in the postage amount has to present the item at the counter and the counter clerk will put the correct postage stamp on it to make up the shortfall and put it into the post without returning it to the customer. Coming up to Christmas people were requesting stamps in 1c and 2c denominations and on the 4th of November 2010 the respondent issued a memo to say that staff were not to sell Christmas first day issue stamps in 1c denominations and the minimum denomination either in single or multiple transactions which can be sold is 55c. The respondent issued a further memo to staff on the 22nd of December 2010 advising them that they are not to sell SOAR stamps below 55c unless a customer requires a 'top up' stamp to make up the difference between the stamp on the item and the correct postage amount. The policy was not implemented as rigidly in some POs as others. A new issue of SOAR stamps was going on sale on the 21st July 2011 and a memo issued to all staff and they were again reminded that the minimum price for SOAR stamps is 55c.
The respondent said that the staff refused to sell the complainant stamps other than in the stated denominations of 55c 82c or 27c (the difference between 55c and 27c) when the complainant refused to present the item for postage at the counter in line with the stated policy on the sale of postage stamps. It was submitted that the complainant was not treated any differently than any other customer who was seeking to purchase stamps outside the regular postage stamp rates. It was also submitted that it is not discriminatory for staff not to provide customers with their name. In general staff are expected to identify themselves to the customers but there is no formal obligation on them to do so and staff in certain areas have discretion. For security purposes it is not the practice of staff at the counter to provide their names to customers. It was also denied that the staff harassed the complainant in refusing to sell him stamps on the occasions in question; staff were following procedures which the complainant did no wish to comply with.
The respondent's barrister submitted that the complainant has failed to establish a prima facie case of discriminatory treatment in accordance with S. 38(A) of the ES Acts and it is clear that the issues complained of have nothing to do with his nationality. The respondent's policy in relation to the sale of stamps is to prevent profiteering on stamps and is in no way directed against foreign national.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Equal Status Act and in terms of Section 5 (1) of that Act. He also submitted that he was harassed contrary to Section 11. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(1) provides that: as between any two persons, the discriminatory grounds ... are ...
(h) that they are of different race, colour, nationality or ethnic or national origins (the ''ground of race''),"
5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
The burden of proof is set out in Section 38A which 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."
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 The complainant submits that he was discriminated against on the grounds of his race as set out at paragraphs 3.1 and 3.2 above. The respondent denies the allegations of discrimination.
4.4 I am satisfied that the complainant is covered by the Equal Status Acts. The next matter for consideration is whether he was discriminated against in relation to access to a service contrary to Section 5(1). In considering the evidence presented, I am satisfied the counter assistants were following company procedures in relation to the sale of stamps and if an Irish person or a person of a different nationality to the complainant were seeking to purchase stamps other than the denominated values of 55c or 82c they would be requested to present their package for posting to the counter clerk. I am satisfied that the complainant has failed to establish he was treated less favourably than another person in similar circumstances was treated. I find therefore that the complainants have not adduced any facts from which discrimination can be inferred. The Labour Court, in examining the circumstances in which the probative burden of proof applies in employment equality cases held in the case Melbury Developments and Valpeters (Det. No. ED AO917) as follows:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
I am satisfied that the above reasoning of the Labour Court is applicable to the case herein, in relation to the burden of proof as both Acts have similar provisions. The complainant has made assertions unsupported by any evidence and he has not produced any facts from which discrimination on the race ground can be inferred. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.
4.6 The next matter I have to consider is whether the complainant was harassed contrary to Section 11 which states:
"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. .........
(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."
4.7 The complainant said that he was harassed and intimidated at the counter when he was refused the stamps he requested. The counter assistants refused to give their names and he did not like their tone of voice when they addressed him. Having considered the evidence, I am not satisfied that the complainant has provided any facts from which it can be inferred that he was subjected to a hostile degrading or offensive environment. In the circumstances I am not satisfied that the complainant has established a prima facie case of harassment.
5.1 I find that the complainant was not discriminated against on the race ground contrary to the Equal Status Acts and he has also failed to establish he was harassed in accordance with section 11.
18th September 2012