ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006900
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 29/11/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 25 of the Equal Status Act, 2000, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is 67 years of age and he has mobility issues caused by a misshapen foot due to an amputation. He is visually impaired and suffers from hand tremors and he suffers from Chronic Obstructive Pulmonary Disease. He lodged a complaint under the Equal Status Act, 2000, against the Respondent on 3rd February 2017 alleging discrimination on the basis of age and disability in the provision of goods and services on 10th October 2016. He did serve the Form ES1 on the Respondent.
Summary of Complainant’s Case:
The Complainant stated he entered the Store in a named location between 15.10 and 15.45 on 10th October 2016. On his entry he found the instore trolley area devoid of small/medium size trollies but there were two of the large trollies. For reasons of age and disability he cannot use these large trollies. The Complainant went to the self-service checkout station to ask if they could locate a suitable trolley for him and he was invited to take a seat while she did so. At approx. 15.35 he again approached the self-service desk and he was informed the staff were trying to locate one but that the person responsible for collecting the trollies and placing them in the store had gone on his break. He then requested to speak to the Store Manager as he wished to escalate his complaint. He waited five minutes when a female employee approached the opposite side of the checkout area and shouted across the intervening space that the staff were trying to locate a trolley for him. This employee did not show the common courtesy of approaching him directly and offering an apology as it was now some 33 minutes since entering the store. He sought out the Manager and stated he would be making a formal complaint and asked her to identify herself. She stated she was the check-out Manager and she gave her First Name. He asked for her surname but stated she was not prepared to divulge this.
The Complainant alleged that this was discrimination on the basis of his age and disability as most shoppers would be able to use the large trolley or even a shopping basket. The Respondent does provide small trollies so making one available to him would meet the criteria of “reasonable accommodation” something required by law. The fact they would not do so when requested by an elderly and disabled person to do so is discriminatory. He also stated a wait of 33 minutes for a trolley was unreasonable and he alleged the demeaning behaviour of the Manager to be also discriminatory.
Summary of Respondent’s Case:
The Respondent stated they were unaware of the Complainant’s age and this is not stated in the complaint form. The central complaint is that he was not provided with a small/medium trolley when he entered the Store. He accepts there were no such trolleys available at the time he entered. The Store does provide a range of trolleys in store including the provision of special trolleys for those customers who are wheelchair bound or use a walking aid. However, the Complainant had a preference for a particular trolley but many customers have a preference for such trolleys and they are not designated for use by disabled customers only. He does confirm that he was provided with the requested trolley within the store and he continued to complete his shopping.
The Respondent referenced Section 4(1) of the Act in the context of the provision of goods or services to its customers and the Respondent by the provision of a range of trolleys and baskets, including a trolley designed to be used by a wheelchair user or a person with a walking frame or stick, does provide “reasonable accommodation” for its disabled and elderly customers. The fact that when the Complainant entered the store the trolley of his choice was not available is not evidence of discrimination of less favourable treatment of the Complainant. The Complainant had been informed that all such trolleys were in use but he was provided with one when it became available. In addition, the Complainant was invited to take a seat until a trolley he requested became available, so he was fully accommodated while waiting for his trolley.
The Respondent then addressed the issue of discrimination on the age and disability ground and stated the Complainant had failed to identify an appropriate or any comparator.
The Complainant was provided with a trolley when it became available, he completed his shopping and he did not provide any evidence to substantiate his complaint.
The Respondent also disputed that the Complainant had to wait 33 minutes for his trolley. They also disputed that the Check-out Manager had shouted across the check-out desk at him and stated that she was standing beside him and also that she had assisted him in the past. She stated that she gave her first name as she was the only employee with that name in the Store.
Findings and Conclusions:
On the basis of the evidence and submissions from both Parties I find as follows –
1. “service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing includes… It is clear that the Respondent, being a supermarket, is a service or facility available to the public generally.
2. Section 3(1) of the Act provides that discrimination shall be taken to occur where “ on any of the grounds specified…..(in this case the Age and Disability ground)…a person is treated less favourably than another person is, has been or would be treated.”
3. Section 3(2) of the Act provides as follows – “ As between any two persons, the discriminatory grounds are: (f) that they are of different ages (the age ground) (g) that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)
4. Section 5(1) of the Act states in relation to the provision of services as follows – “ A person shall not discriminate……in providing a service,…..where the disposal or provision is for consideration or otherwise and whether the service provided can be availed only by a section of the public”.
5. Section 38A of the Act provides that the burden of proof rests with the Complainant in the first instance to provide facts from which the onus and burden of proof then shifts to the Respondent. This section provides as follows – “ 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 to him or her, it is for the Respondent to prove the contrary”.
6. The established facts of this case are – The Complainant entered the Store in a named location to do his shopping – The Respondent does supply a number of different trolleys (large, small/medium), baskets and a special trolley for wheelchair users or those using a stick – the Complainant sought the use of a small/medium trolley to do his shopping – There was so such trolley available at the time he entered the Store – He requested the provision of a small/medium trolley and he was requested to take a seat while the customer service employee sourced the specified trolley – a trolley was sourced from the car-park and provided to him and he continued to do his shopping – There is a dispute between the Parties as to the length of time it took to secure the trolley – The Complainant requested to speak to the Manager and she, named, arrived – She was asked for her name and provided her first name to the Complainant on the basis she was the only employee in the store with this first name.
7. I find on the basis of the evidence presented that the Complainant has not established a “prima facie” case of discrimination on either the age or disability ground. The Respondent does provide a service, varied, in the provision of various trolleys for its customers, and this is borne out by the fact that the Complainant was provided with a suitable trolley and did complete his shopping on the day, even though there was a delay in securing the said trolley from the car-park.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
In accordance with Section 25(4) of the Equal Status Act, 2000 and in light of my findings above I declare the complaint of discrimination is not well founded as the Complainant has not provided facts as required by Section 38A of the Act from which discrimination of either the age or disability ground has been established.
Dated: 26th March 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Equal Status – Age and Disability Ground