Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2013-007
(represented by Mairead McKenna, B.L.,
instructed by Tesco Ireland Legal Department)
File Nos. ES/2011/0165
Date of Issue: 19th August 2013
Keywords: Equal Status Acts 2000 to 2011 - Discrimination, section 3 - race ground, Section 38A Burden of Proof, prima facie case
1 Delegation under the Equal Status Acts 2000 to 2004
1.1 The complainant referred his claims to the Director of the Equality Tribunal under the Equal Status Acts on 21st November 2011. In accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director then delegated the case to me, Peter Healy, 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. The investigation, under section 25, commenced on 26th November 2012. A hearing took place on the 21st May 2013 and additional information was received up to 31st May 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2.1 The dispute concerns claims by the complainant that he was discriminated against by the above named respondent on the race ground in terms of Sections 3(2) (h), contrary to Section 5 of the Equal Status Act, 2000-2012 when harassed and victimised under sections 2(j) by the respondent with their continued refusal allow the complainant to access their local branch. The respondent was notified on the 1st November 2011 in accordance with the provisions of the Acts.
3. Complainant's written submission.
3.1 The complainant submits that Security Guard A has followed him in his local Tesco store on many occasions and that he has been unable to shop there without feeling under pressure.
3.2 The complainant submitted that on the 31st October 2011 he was shopping in his local branch of Tesco when security guard A began to follow him while making remarks into his radio. The complainant asked the security guard for his security licence number and the security guard called the manager. The complainant states that the manager refused to give him the security guards details and in front of other customers and loudly told him to leave the store and not to return or they would call the Garda. The complainant states that there was physical contact at this point. The complainant states that he told the Manager he would record any future behaviour of staff at the store and that he then left the store.
3.3 The day after the above incident, the complainant submits that he wrote to the manager to ask for an explanation.
3.4 The complainant says that on a later occasion he tried to enter the shop while he was recording video footage on his phone and was refused access by Security Guard B. The complainant alleges that Security Guard B told him that he was being refused access because of the letter to the manager.
3.5 The complainant submits that his partner witnessed both incidents.
3.6 The complainant submitted the video footage for the consideration of the Tribunal.
4. SUMMARY OF COMPLAINANTS SUBMISSION AT HEARING.
4.1 In regards to the incident on the 31st October 2011, the complainant and his partner maintain that Security Guard A had followed the complainant. The complainants' partner only, states that security guard A referred to the complainants' Polish nationality over the radio amongst other comments. The complainant says the Managers exact instruction to leave the store was "sorry, you have to leave the shop". The complainants' evidence in regards to any physical altercation was that Security Guard A tugged his sleeve. The complainant's oral evidence was that he had "No clue" or "No idea" why he had been made to leave the store.
4.2 The complainant and his witness submitted that on the 3rd November the compliant was told by Security Guard B to "leave the shop" and to turn off his camera because he had written a complaint to the store manager.
4.3 The complainant states that he has not returned to the store since the incident on the 3rd November.
4.4 The complainant submitted that a letter of the 4th November, and a specific paragraph of that letter, was the first instance of a complaint being brought to the respondent's attention.
4.5 The complainant submitted that the respondent would fire any employee who would confirm his version of events.
4.6 The complainant stated that he expects a public apology in the newspapers from the respondent.
5 SUMMARY OF RESPONDENTS WRITTEN SUBMISSION
5.1 The respondent denies that they discriminated against the complainant. They maintain that that are not aware of his race and it has not been identified.
5.2 The respondent submits that there is no evidence before the Tribunal that they were put on notice of any concerns may have had in relation to his to his nationality and/or race or that he was being treated less favourably on the grounds of same.
5.3 The respondent accepts that there was an incident in the store on the 31st October 2011 concerning the complainant and security guard A. They state that the complainant approached the security guard A in an abusive and aggressive manner. They say that security guard A immediately made contact with the Manager who was then forced to remove the complainant from the store. The respondent states that the complainant was removed not on the grounds of his race but on the grounds of his threatining, intimidating and abusive behaviour.
5.4 The respondent denies that security officer A followed the complainant. The respondent submits that the complainant was in the queue for the self scan checkout when he left the queue and approached security guard A.
5.5 The respondent says that the incident was subsequently considered by the Store Manager, the Duty Manager and Security Guard and a decision taken to withdraw the complainants' invitation to trade at the store on the basis of what they considered aggressive and intimidatory behaviour. They submit that this decision was communicated to the complainant on the next occasion he visited the store.
5.6 The respondent says that the store in question is a private premises and customers are invited to trade there, but that the invitation can be withdrawn at any point, at the discretion of the store. The respondent contends that discretion in this instance was exercised by the store but not in a discriminatory of unlawful manner.
5.7 The respondent submits that the complainant has not put forward any evidence of less favourable treatment and that the complaint is vexatious and frivolous.
6. SUMMARY OF RESPONDENTS EVIDENCE AT HEARING
6.1 Security Guard submitted that he was not following the respondent on the 31st of October but that he was on duty standing behind the check out. He said that the complainant approached in a very aggressive manner and stood very close to him face to face and said " I need manager now". Security Guard A says he brought the store Manager to the complainant and that the complainant then subjected the manager to aggressive behaviour becoming highly agitated. Both the Manager and the Security Guard A state that in response to the manager asking if the complainant had a complaint to make that the complainant starting shouting "number" repeatedly into the face of the Manager. The Manager states that the complainant was then asked to calm down or leave, at which point the complainant left with the security guard following him in order to ensure his exit. Security Guard A maintained that he never touched the complainant and the Manager states that he never saw any contact.
6.2 Security Guard A said that he was not aware of the complainant's nationality but was aware of the complainant from a previous incident when he says the complainant refused to vacate a disabled parking space.
6.3 Manager A submitted that there over 130 staff in the store with many Polish employees.
6.4 In relation to the incident on the 3rd of November Security Guard B had been informed on that day by a manager of the store that the respondent had "withdrawn the respondents invitation to trade until the situation was resolved." Security Guard B states that he told the complainant that he had no right to take photographs of him, but that the complainant kept recording anyway.
7 CONCLUSIONS OF THE EQUALITY OFFICER
7.1 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 2(j) of that Act. 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. The video footage was not viewed as its contents were not contested.
7.2 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) 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"),"
7.3 Section 5(1) provides that:
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.
7.4 The burden of proof is set out in Section 38A which provides that: " 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."
7.5 Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, and stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
7.6 Oral evidence was presented to the Tribunal by both parties. The respondent presented three witnesses, the two security guards and the manager. Their version of events was very consistent and credible. In contrast the complainant had a poor demeanour at the hearing going so far as to refuse to answer questions when directed to do so by the Tribunal. The totality of the complainant's evidence and demeanour were more consistent with the respondent's version of events then with his own. Therefore taking into account all of the written and oral evidence, I prefer the respondents version of events and am satisfied that the following has been established as being the relevant facts at the time of the complaint:
- The complainant has been refused access to the respondent's premises but there is no evidence that it is on the basis of the complainant's race. The complainant's own evidence was that he had no idea why he had been refused access.
- The complainant submitted that the respondent is aware of his partner's nationality, which is the same as the complainants, and that she continues to shop there without any problems.
7.7 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
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.
7.8 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which it can be shown that he was treated in a less favourable manner than others, in relation to the race ground. Rather, I consider that all the complainant has put forward is mere speculation or assertions unsupported by evidence. Accordingly I do not consider that the complainant has established a prima facie case and there is no onus on the respondent to prove the contrary.
8.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
8.2 I find that that a prima facie of victimisation has not been established and this element of the complaint fails.
19th August 2013