ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023473
Security Service Provider
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: 13/12/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 25 of the Equal Status Act, 2000, following 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 a member of the Roma community and is originally from Romania. She alleges that she was discriminated against on the grounds of her ethnicity when on the 7 March a security guard employed by the respondent refused her access to a store for which their company provided security services.
The complainant submitted the ES.1 form to the respondent on 3 May.
The complainant submitted her complaint to the WRC on 1 August 2019.
Preliminary Issue – Correct Respondent
Summary of Respondent’s Case:
The respondent refers to the complainant’s description of them as agents of the retail store based on their interpretation of section 42(2) of the Act of 2000 as amended. The respondent submits that they are not an agent but a service provider.
The complainant has also submitted a separate complaint based on the same incident of the 7 March against the retail store for which the respondent provides security services.
The retail store at the hearing stated that the respondent is accepting liability for the actions of the security guard , their employee.
Summary of Complainant’s Case:
The complainant’s barrister submitted that in order for the retail store to shift liability to the respondent and relieve the retail store of responsibility for the actions of the respondent’s security guard, the retail store- also named as a respondent answerable for the actions of the security guard- must prove that the security guard’s actions were unauthorised and that he received no relevant training.
The complainant’s representative submitted that while the respondent security company might fund whatever redress might emerge for the complainant from these proceedings, the retail store was statutorily and vicariously liable for the actions of the respondent’s security guard.
Findings and Conclusions:
The complainant has made a complaint against the respondent, a provider of security services to the retail store where the alleged act of discrimination, perpetrated by the respondent’s employee occurred on 7 March. As has been noted, the complainant has made a separate complaint against the retail store.
Before I decide on the question of whether the security guard’s actions in denying the complainant access to the retail store amounted to discrimination contrary to sections 5(1) and 3(2) (h) of the Equal Status Act 2000, as amended , I must decide which of the named respondents -the security company or the retail store, or both - is statutorily liable for this alleged infringement of the Act of 2000 as amended.
The respondent has a contract with the retail store to provide security services to the store , its staff and customers.
Section 42(2) of the Equal Status Act 2000 as amended states:
“ Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”
The matter of liability for the actions of a security guard deployed to provide security services to a client bar was addressed in Axinte v Q-Bar Dublin DEC-S2005-094. The security guard involved in this incident was employed by a security company contracted to provide security services for the respondent’s bar. The equality officer relied on section 42 (2) of the Equal Status Act 2000 and concluded that the refusal by a security guard to admit and provide service to the complainant rendered the respondent, the bar, vicariously liable for the refusal of service. She found on the facts of that case that Mr. Axinte had been discriminated against contrary to the Equal Status Act 2000 on the ground of race by the refusal of service on 27th May 2002.
The liability of a security firm is addressed by Judy Walsh as follows:
“For example, a retailer might have contracted with a firm to provide security staff for its premises. In such a case the security staff would be agents of the retailer”, Walsh, Judy (2012), Equal Status Acts 2000-2011, Discrimination in the Provision of Goods and Services, page 265.
The question of dual liability in the context of section 42(2) of the Act of 2000 was considered in Mongans V Clare County Council, DEC-2008-039.In this decision, the Equality officer addressed alleged discrimination in housing provision and the liability of both Ennis Town Council and Clare County Council in respect of this complaint. The equality officer stated
“it appears that for the purposes of implementing the Traveller Accommodation Programme and other aspects of housing/accommodation and related services in respect of Travellers that the relationship of Ennis Town Council to Clare County Council could be interpreted as a relationship of agency”.
As Clare County Council was responsible for the entire county, she held Clare County Council to be vicariously liable for the actions of Ennis Town Council which was a separate entity. The equality officer declined to proceed with the complaint against the latter in relation to housing provision and held Clare County Council to be statutorily liable.
While the degree of separation between a retail store and a security company is greater than that between a county council and a town council – both separate entities -charged with the provision of the same service, the equality office having found Clare County Council vicariously liable for the actions of Ennis Town Council declined to proceed with the complaint against Ennis Town Council.
In a separate decision by the same complainant in the instant case and based on the same set of facts -Customer v A Retail Store, ADJ -00023470- I found that respondent, the retail store, protected by the respondent on the 7 March, to be vicariously liable for the actions of the respondent’s employee.
The full panoply of goods and services provided by the store includes the safety and security of staff and customers. The retail store entrusts the respondent to carry out this function on their behalf when dealing with customers trying to access their store and to use their judgement as to who should and should not be admitted to the store. The respondent is accountable to the retail store for how it exercises its function. The uncontested evidence at the hearing was that the respondent’s actions in denying access to the complainant to the store on 7 March were fully supported by the retail store.
I find that the respondent is an agent of the store. I find that the respondent acted with the full authority and support of the store ( “the other person”).
On the basis of the evidence, the decisions cited, the fact that I have found the retail store to be statutorily liable for the actions of the respondent’s security guard, and the above considerations ,I do not find that the respondent is statutorily liable for this complaint. I find that the complainant has named the incorrect respondent in these proceedings. Accordingly, I find that I do not have jurisdiction to hear this complaint.
Anonymisation of parties.
As I have chosen to anonymise the parties in the accompanying decision- Customer v A Retail Store, ADJ -00023470, and have set out the reasons for same in that decision, I have decided to anonymise the parties in this decision.
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.
I find that the complainant has named the incorrect respondent in these proceedings. Accordingly, I find that I do not have jurisdiction to hear this complaint.
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Vicarious liability in complaints under the Equal Status Act 2000. Correct respondent