EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-081
(Represented by Claire Bruton BL,
instructed by Mason Hayes & Curran Solicitors)
File Reference: ES/2013/0058
Date of Issue: 21st December 2016
1.1 This dispute concerns a claim by the Complainant, that she was discriminated against by the Respondent on the ground of race arising from several incidents with a third party whilst in its Supermarket premises and/or carpark, contrary to Sections 3(2)(h) and 5(1) of the Equal Status Acts 2000-2015 (hereinafter also referred to as ‘the Acts’). The Complainant further claims that the Respondent permitted the third party to harass her on the ground of race whilst on its premises contrary to Sections 11 of the Acts.
1.2 This complaint was lodged with the Director of the former Equality Tribunal (now Workplace Relations Commission) on 11th June 2013, a notification under Section 21(2) of the Acts having been sent to the Respondent on either 16th May 2013 or 21st May 2013 (although a registered postage slip recorded it as being sent on 16th May 2013, it was dated 21st May 2013). The alleged impugned conduct arose from an incident on 22nd January 2013 (although the Complainant also referred to a prior incident on 11th July 2010 in her claim form). By Direction DIR-S2014-005 issued by the former Equality Tribunal on 26th September 2014, the Complainant was granted an extension of time for notification of this complaint from two months to four months pursuant to Section 21(3) of the Acts. Although a number of concerns were raised by Solicitors for the Respondent in a letter dated 7th November 2014, the Direction was not appealed to the Circuit Court and accordingly stands. The Respondent also raised a number of preliminary issues in relation to this claim which are set out and addressed hereunder.
1.3 On 30th September 2016, in accordance with his powers under Section 16 of the Workplace Relations Act 2016, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated this case to me, Aideen Collard, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is when my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 3rd October 2016. The Complainant represented herself with the assistance of a friend whilst the Respondent was legally represented with Solicitors and Counsel. I outlined the relevant legal provisions of the Acts and the Respondent’s preliminary objections to the Complainant in lay terms and briefly adjourned the hearing to afford her the opportunity to consider same and respond. All evidence presented and submissions and documentation submitted before and during the hearing have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
1.4 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant confirmed that although she has resided in Ireland for 28 years, as a Spanish national, of Hispanic race, she can be so identified by her surname and accent. She confirmed that she had been shopping at the Respondent’s Supermarket on 22nd January 2013 when an incident arose in the carpark. She alleged that her sister-in-law, also a customer, had followed her, prevented her from getting into her car, assaulting her in the process and threatening her using abusive and xenophobic language including telling her to go back to her country. She said she had driven away from the scene as she was terrified and traumatised and had rung the Respondent’s Customer Service shortly afterwards. It was not in dispute that the Customer Service Representative who answered her call had said that she could not come out to the carpark as she was seven months pregnant or that the incident was over at that stage and her sister-in-law had returned to the Supermarket. Neither was it in dispute that the same Representative had informed the Complainant that she would have CCTV of the car park examined and had later rung her back to confirm that there was no CCTV in respect of the incident in question. The Complainant confirmed that the incident arose from an ongoing family dispute. She also referred to a similar incident between the parties occurring in the Respondent’s Supermarket on 11th July 2010, which she contended she had reported to the Respondent but it had also failed to follow up or act upon the matter.
2.2 On the face of the complaint form and submissions, this complaint appeared to be framed around an allegation that the Respondent had permitted the Complainant to be subjected to two incidents of racial abuse and harassment. However, in response to a preliminary objection on behalf of the Respondent that it was not correctly named as it could not legally be held vicariously liable for the conduct of third parties pursuant to Section 42 of the Acts, the Complainant reframed her complaint such that it arose from the manner in which the Respondent had handled her report of the incidents in question.
2.3The Complainant said she was unhappy with the Respondent’s handling of the incidents in question and contended that it had not taken them seriously owing to her race/nationality and that she had been treated less favourably than an Irish national would have been treated in the same circumstances. In particular, she contended that it had not taken any action to assist her or follow up in accordance with its policy and continually delayed dealing with matters. She criticised the absence of CCTV of the latter incident, the fact that no member of staff had come out to the car park to investigate the matter and that Gardaí had not been called. She had written to the Respondent complaining about its handling of the matter on 2nd February 2013 and was unhappy with its response dated 22nd February 2013 confirming that as there was no CCTV or other evidence to verify the incident, it could not take any further action and encouraged her to report the matter to Gardaí. She had written again to the Respondent on 4th March 2013 seeking information in relation to the CCTV and it’s procedures for dealing with complaints of assault and xenophobia. She was also unhappy that the Supermarket Manager, Mr AB had sought to ring her to discuss her complaint when she was busy working instead of writing to her as confirmed in a further exchange of correspondence. Since the last incident, she said she had been unable to shop at the Respondent’s Supermarket and that essentially that she was being denied access to a service under Section 5 of the Acts on the ground of race. As a result she was severely inconvenienced and also suffered from ongoing trauma and distress. She sought a public apology and compensation in respect of her costs of travel, pain and suffering. She also sought to have the Parties named and the “findings made public to prevent a re-occurrence of this type of treatment of the public by corporations.”
2.3 When questioned, the Complainant confirmed that she had not rung or otherwise reported the matter to the Gardaí on the day of the latter incident. She stated that the next day, she had written regarding the incident to the Garda Station for the area but could not remember the date and did not have a copy of the letter. She agreed that she had not followed up. It was put to her that there was no record of her complaint in respect of the earlier incident of 11th July 2010 which was contended to be well out of time in any event. It was also put to her that Respondent’s staff would not have known her personally or have been aware of her racial background or nationality as all communications took place over the phone and in writing. In response, she contended that they could have deduced her race from her surname and accent which Counsel contended was not very strong. Finally, it was put to her that there was no evidence supporting her contention that the Respondent would have responded differently to the situation had she been an Irish national and that its response to her complaint was reasonable in the circumstances.
3. SUMMARY OF THE RESPONDENT'S SUBMISSIONS & EVIDENCE
3.1 At the outset, Counsel for the Respondent raised a number of preliminary objections to my jurisdiction to investigate the matter and to the claim. It was submitted that notwithstanding the Direction of the former Equality Tribunal bringing the Section 21(2) notification within time (which was not accepted as being correct despite no appeal), separately, the complaint falls foul of Section 21(4) of the Acts which provides: “The Director shall not investigate a case unless he/she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.” It was submitted that as the complaint was lodged on 11th June 2013, the notification having been sent to the Respondent on either 16th or 23rd May 2013, and the Respondent had not replied or a month had not elapsed after the notification before this complaint was lodged, an investigation of the matter is preluded.
3.2 Counsel also contended that it was not the proper Respondent as essentially this was a complaint of discrimination and harassment on the ground of race against a third party and it could only be held vicariously liable for the conduct of its employees and not third parties pursuant to Section 42 of the Acts. In this respect, reliance was placed upon the decisions of the Equality Tribunal in Brian Merriman -v- O’Flaherty’s Ltd t/a Reads Print, Design & Photocopying Bureau DEC-S2011-049 and John & Angela Mongans and Children -v- Clare County Council DEC-S2008-039. It was also submitted that the Complainant’s reframing of the complaint at the hearing was an abuse of process.
3.3 Further issue was taken with the Complainant’s claim in relation to an earlier incident of 11th July 2010 in circumstances where it was first referred to in her complaint form, it was well out of time and the Respondent did not have any record of any complaint being made in respect of this incident.
3.4 Without prejudice to these objections, the Respondent wholly refutes the Complainant’s complaint herein. The Supermarket Manager, Mr AB at the material time gave evidence confirming that he had no recollection or record of the earlier incident in July 2010. He does not know the Complainant personally, and nor had he been aware of her race or nationality. He outlined the steps taken by the Respondent in responding to her report of the latter incident as outlined above. He confirmed that following her call to Customer Service on 22nd January 2013, he was immediately made aware of the incident and had directed security to review all the footage of the carpark. Whilst there were a number of cameras in the carpark, it materialised that the location of the alleged incident was not covered by CCTV. As there was no verifying evidence of an incident occurring, it would not have been appropriate to take any further action. He confirmed the existence of a written policy for dealing with criminal activity on the premises and confirmed that where there is evidence of such activity, perpetrators may be barred. He also outlined the steps taken to deal with the Complainant’s written complaints and advice that she report the matter to Gardaí. It would not have been appropriate to respond to the various questions raised regarding CCTV. He also confirmed that the Complainant had refused to take his calls to address her complaint when she was unhappy with the Respondent’s written response. He was of the view that the Complainant’s complaint had been dealt with appropriately and confirmed that she had not been treated any differently than an Irish-national customer would have been in similar circumstances. The Complainant questioned Mr AB as to the adequacy of the steps taken to address her report of the latter incident. When it was put to him that a security guard should have been sent out after she informed Customer Service of the incident, he replied that the incident was already over at that point and the parties had left the carpark. Again he denied that the Complainant was treated any differently than anyone else in a similar situation.
3.5 In summary and in addition to the preliminary objections as set out aforesaid, Counsel for the Respondent contended that there was no evidence whatsoever to support the Complainant’s claim that she had been treated less favourably than an Irish customer would have been in similar circumstances on the ground of race. Contrary to that asserted by the Complainant, the Respondent had taken the Complainant’s report of the incident of 22nd January 2013 seriously and had investigated the matter, concluding that it would not be appropriate to take further steps in circumstances where there was no evidence of or witnesses to the alleged incident which appeared to be a personal family matter. Mr AB had also made several attempts to speak to the Complainant about the alleged incident without success. In the Respondent’s view, the most appropriate course was for the Complainant to contact and pursue the matter with Gardaí given the seriousness of her allegations against her sister-in-law. The Respondent and/or its staff were unaware of her race or nationality so this could not have influenced their reaction to the matter. Counsel contended that as the complaint was based solely upon speculation and assertions unsupported by any evidence, consequently it cannot be elevated to a factual basis upon which an inference of discrimination can be drawn as per Valpeters -v- Melbury Developments (2011) 21 ELR 64. In all the circumstances, the Complainant has not made out a prima facie case of discrimination by the Respondent and/or its staff on the ground of race such that the burden of proof shifts to the Respondent to rebut the inference of discrimination as per the established legal authorities on this test.
4. FINDINGS AND CONCLUSIONS
4.1 Firstly, and in the absence of any appeal to the Circuit Court, I am bound by Direction DIR-S2014-005 granting the Complainant an extension of time for notification of this complaint from two months to four months pursuant to Section 21(3) of the Acts. I now turn to the issue of whether this complaint falls foul of Section 21(4) of the Acts as the Respondent had not replied and a month had not elapsed after the Section 21(2) notification was sent and before this complaint was lodged. Section 21(3) of the Acts (since amended to reflect the changeover from the Equality Tribunal to the WRC) provides: “The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.” I am satisfied that giving this provision its literal meaning, a complaint cannot be ‘investigated’ until either the Respondent has replied to the notification or at least one month has elapsed after it was sent to the Respondent. Therefore a complaint such as the instant one lodged within a month in the absence of a reply from the Respondent does not preclude and investigation or invalidate the claim. It simply precludes an investigation of the matter until either the Respondent has replied to the notification or that at least one month has elapsed after it was sent to the Respondent. In so concluding, I am also satisfied that this provision was intended to enable the Respondent an opportunity to respond to the complaint being made before an investigation. In the instant case, the investigation commenced on 30th September 2016 when the matter was delegated to me. Given that the notification was sent to the Respondent on either 16th or 23rd May 2013 and this complaint was lodged on 11th June 2013, some three years have elapsed since the notification and my investigation. Therefore there can be no question of a precipitous investigation arising in respect of this complaint.
4.2 Based upon the authorities cited and the facts of this particular complaint, I accept the Respondent’s position that it cannot be held liable for any alleged acts of discrimination and harassment on the ground of race allegedly perpetrated by the third party against the Complainant and it can only be held vicariously liable for the conduct of its employees pursuant to Section 42 of the Acts. For this reason, I am satisfied that the complaint of harassment cannot succeed. I note that the Complainant resiled from this position and reframed her complaint accordingly during the hearing. As I do not consider the Respondent to be greatly prejudiced by this reframing, I have treated this as the substantive issue.
4.3 I am also satisfied that the earlier alleged incident on 11th July 2010 arising between the same parties on the Respondent’s premises is well in excess of the 6 month time limit (extendable to 12 months for reasonable cause) pursuant to Section 21(6) of the Acts. In any event, I understand the Complainant’s reference to the previous incident as being made in the context of being probative of the manner in which the Respondent had allegedly handled the subsequent incident arising on 22nd January 2013.
4.4 Therefore the remaining issue for determination is whether the Respondent discriminated against the Complainant on the ground of race in relation to the manner in which it had handled her report of an incident with a third party in its Supermarket carpark on 22nd January 2013 and subsequent complaint as outlined above. The facts adduced must be assessed in relation to the relevant legal provisions. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...” Section 3(2)(h) defines the discriminatory ground of race as arising in circumstances when as between any two persons “that they are of different race, colour, nationality or ethnic or national origins.” In relation to the disposal of goods and provision of services, 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.” Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference.
4.5 There is no issue that access to the Respondent’s Supermarket constitutes a service to the public within the meaning of Section 5(1) of the Acts. The question is whether the Respondent has denied her access to this service on the ground of race arising from the manner in which it handled her report of an incident with a third party in its carpark on 22nd January 2013 and subsequent complaint. Having considered all of the evidence proffered by both Parties, on the balance of probabilities, I am satisfied that there is no evidence that the Respondent and/or its staff who dealt with the matter were aware of the Complainant’s race or nationality, either at the time of the initial report or throughout the subsequent communications. Whilst the various letters from the Complainant to the Respondent made reference to the Complainant being subjected to “xenophobic insults” by the third party in question, her sister-in-law, they did not reveal her race or nationality or assert that the matter was being mishandled by the Respondent owing to same. I have also considered whether her name or accent could have identified the Complainant’s race or nationality. In this respect, I note that she used a double-barrelled name comprising of her maiden name (possibly identifiable as a Hispanic surname) and her married name (a very obviously Irish surname). I am satisfied that this alone would not have revealed her race or nationality. Likewise, I could not conclude that her accent was particularly strong and would have identified her race or nationality, which is not surprising considering that she has resided in Ireland for 28 years. Lest there be any doubt as to the Respondent’s awareness of her race or nationality, I am further satisfied that there is no evidence that she was treated less favourably than an Irish customer would have been in similar circumstances. There is nothing about the Respondent’s response to the report of the incident in question that could give rise to such an inference. In the absence of any independent evidence supporting the Complainant’s report of the incident in question such as CCTV or witnesses, the decision not to take any further action seems perfectly reasonable. I also note that she did not follow the Respondent’s advice to pursue the matter with Gardaí as being the appropriate course. Overall, I am satisfied that the Complainant has not made out a prima facie case of discrimination on the ground of race.
5.1 I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of discrimination or harassment by the Respondent on the ground of race requiring rebuttal and accordingly dismiss same.
6. RESPONDENT’S APPLICATION FOR ANONYMISATION
6.1 Counsel for the Respondent requested anonymisation of this decision in light of comments made by the Complainant during the hearing to the effect that she considered her treatment by the Respondent to be indicative of a wide-ranging culture of discrimination by corporations in Ireland she had experienced as a non-Irish national and of her intention to publicise the matter widely to effectively ‘name and shame’ the Respondent. Regardless of the outcome, it was contended that owing to the nature of the allegations along with these comments, that such a decision would result in adverse publicity to the Respondent as a reputable Supermarket chain. In light of the Complainant’s comments regarding publication, I deem it appropriate to accede to the Respondent’s request and exercise my discretion in favour of anonymising this decision. I also warned both Parties of their obligations to respect and uphold the private nature of this matter under Section 36(2) of the Acts, any breach of which constitutes a criminal offence.
21st December 2016