Complainant

Respondent

Parties

Danut  Nae

Supervalu

Representatives

Rosa Eivers Irish Human Rights and Equality Commission

Louise Coughlan The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00071250-001

20/07/2024

The Complainant alleges that he was discriminated against in relation to the provision of goods and services on the grounds of race when he attended the Respondent’s shop in April 2024. The Respondent contests the allegations.

Danut Nae – Affirmation.

The Complainant is a working in the Roma community. He tries to help the Roma community members with their social welfare applications and accommodation needs. On the 27th April he was on his way to an event. He went into the Respondent store to get a drink. He had been to the store many times as he lives close to it. He went into the shop to get his drink. He asked his colleague who was with him to just wait for him until he got what he wanted. She was at the front door. The security guy was at his desk. He bought a packet of chewing gum and a drink. He went to the self service area to pay. It wasn’t working. He asked an assistant for help. She didn’t reply. The security man who was sitting close by did respond. The Complainant was asked in cross examination if he snapped his fingers at the security guard to get his attention, but he denied that.

He said that he does gesticulate with his hands when he is talking and maybe the security guard saw that and mistook it for him snapping his fingers at him. The security guard asked “why did you call me”. The Complainant said that he did not call him, he asked the shop assistant for help. He denied asking the security guard “what the fuck are you doing here”. He told the security guard that he should be looking at the CCTV camera, doing his actual job and not talking to him. Then the security guard said “I don’t need customers like you”. He asked him to apologise and he said “I will never apologise to you”. Then the cashier lady came over to him and she help him pay for his items. When he was doing that another member of staff came over to the security man. He was pointing at him and laughing. He couldn’t hear them. He asked one of the staff helping at the self-service area if there was a manager he could talk to. She pointed to where the manager was.  He wanted to tell her that the security guard humiliated him and made him feel “like zero”. He explained the situation to her and how it made him feel. She didn’t say or do anything while he was there. He felt discriminated against and harassed. He went back over to the security guard, took out his phone and tried to take pictures of him. He was informed that he was not allowed to do that. He only wanted the picture so he could have proof of who it was who discriminated against him. He then put his phone away.

He left the shop to go to his meeting. It was a terrible day. He was feeling very upset about what had happened.

On the 1st May 2024 he sent an email to the Respondent customer service department looking for CCTV . He gave times and details of what he was looking for. He also exhibited a copy of his receipt which gave the date and time of the transaction.  A few minutes later he got a reply stating that “we do not have access to CCTV footage here”.  He then asked for the email address of the Talbot Street store. They replied by saying  “ we do not have store email address that we can give out here at the helpdesk” Correspondence went back and forth until the 9th May when he was informed that the CCTV footage was no longer available as the system overwrites itself after 10 – 12 days.

Suruvinder Singh – Affirmation.

He was working in the store at the time. However, he was employed by an agency, Crime Control. It was the agency who placed him in the store. Since March of this year, he is employed by the Respondent directly. On Saturday  27th April 2024, early in the morning he was working at his station which is located very close to the checkout area. He was doing some work on receipts when the Complainant, clicked his fingers at him and called him over.  He responded by saying “don’t call me over like that, that’s not how you get my attention, I am not staff, I am security”. The Complainant replied by saying “get the fuck out of my face”. The Complainant was assisted by a member of staff to complete his purchase. He then asked for a manager and he explained the situation to her. The Complainant said he wanted Mr Singh to apologise to him. Mr Singh said he had nothing to apologise for. The Complainant got very frustrated by that. The Complainant said in his evidence Mr Singh said “I don’t need customers like you “. That did not happen. Mr. Singh also denied that anyone came up to him and that they were both pointing and laughing at the Complainant.

The Complainant states that Mr Singh’s recollection is not as good as his because it was just an ordinary day for Mr Singh but it was a much bigger issue for him, so his recollection is much better.  

When Mr. Singh was asked about the CCTV  over a week later, he went to download it but it was no longer available having been recorded over by new footage.

Mr. Singh said he didn’t know the Complainant, didn’t know where he was from and he certainly didn’t know that he was a Roma man. He didn’t learn that until the claim was commenced.

Nicole Gray- Affirmation.

She was working at the self-service area on her own April 2024.  It was a Saturday. There would only ever be one on the check out on a Saturday. She wasn’t actually there at the time the Complainant had an issue paying for his goods. She was down at the back of the store. When she came back the Complainant and Mr Singh were having an altercation. Mr Singh said he had clicked his fingers at him to get his attention. Ms. Gray saw what the problem was with his check out machine so she fixed that and helped him pay for his goods. The Complainant asked to speak to a manager. She showed him the manager.  She could see him talking to the manager but she couldn’t hear what they were saying. She had no more involvement with the issue.

Robert Ward- Affirmation

He is the managing director of the group. On the 7th May 2024 he received a phone call from the store in Talbot street stating that the Complainant had been in contact with customer service at Musgave’s and that a complaint was coming. He didn’t get any details on the 7th. On the 8th the request for the CCTV came in. The request was unusual because it didn’t highlight what the issue was. Mr Ward wanted to talk to customer care at Musgraves (franchisor) and to the Complainant to get some details. He also knew that there might be a problem with the CCTV due to the time lapse between the incident and the complaint. He spoke to the Complainant on the 8th. It was a good conversation.  He asked for a photo of the Complainant so they could identify him from the CCTV. Then on the 9th May he spoke to Mr. Singh about getting the CCTV. Mr. Singh looked for it but it was gone from the system. He then tried to retrieve the data from the system but it wasn’t possible. On the 12th June the ES1 form came in. Mr Ward replied with the ES2 form denying the allegations.

The store is a bit of a hot spot for crime unfortunately. They deal with about 70 incidents a week. The more serious incidents are thefts, violence, threatening behaviour. All of that is documented. Then there are customers who are just rude or drunk or disruptive. All of the staff are trained in de-escalation. This incident was not logged because as far as the staff were concerned it was so minor it didn’t warrant it being logged. The customer got to buy is goods and was assisted by a member of staff when he ran into difficulties.  

The franchisor is not the data controller, and they would not have knowledge of each stores cctv policies. Each store or group has its own CCTV policy. The Complainant lives beside the store. When he was having difficulties obtaining an email address or contract number of the store he should have just called in and asked for it. Instead, he waited until the 7th May to act.  

Even if something was observed on the CCTV Mr Singh couldn’t have been disciplined by the Respondent as he is not employed by the Respondent.  He is employed by a security company. They and only they could deal with any disciplinary matters. When asked under cross examination if it was appropriate to ask Mr. Singh to get the CCTV footage when he was the person involved in the altercation.  Mr. Ward said that nobody can alter, delete, copy the CCTV as they don’t have the software needed to do that.  That can only be done by a 3rd party company.  As there was nothing he could have done to it MR Ward didn’t see any difficultly asking him to download it.

The law in relation to discrimination in this jurisdiction is well established.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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 85 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. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment”

The Complainant alleges that Mr. Singh discriminated against him on the grounds of race on April 27th, when he encountered difficulties using the self-service area at the Respondent’s store. The Complainant claims that Mr. Singh belittled and humiliated him by saying, “I don’t need customers like you,” while pointing at him and laughing with another colleague. He contends that this treatment was motivated by the fact that he is a member of the Roma community.

Mr. Singh, however, stated that he only became involved after the Complainant summoned him by clicking his fingers—an action he found objectionable. Based on the evidence, I find that this was clearly the catalyst for the altercation. The Complainant assumed Mr. Singh’s alleged behaviour was racially motivated, but no evidence was presented to show that Mr. Singh knew the Complainant was of Roma origin. As such, "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

The Complainant also alleged that after the initial incident, Mr. Singh returned to his desk and, together with another employee, pointed at him and laughed. Mr. Singh denied that anyone was with him at the time and also denied pointing or laughing at the Complainant. His account was corroborated by Ms. Gray. Even if it had been proven that Mr. Singh had behaved in such a manner, no evidence was provided to suggest it was due to the Complainant's membership of the Roma community.

Regarding the CCTV footage, the Complainant had the opportunity to visit the store to request a contact email or a copy of the footage. However, despite not receiving the necessary information from Musgraves, he waited more than ten days before taking any action. By then, the footage had been overwritten, in accordance with the store’s system, which automatically records over itself every ten days. There is no evidence linking the CCTV issue to the claim of racial discrimination.

Having carefully considered all the evidence, I find no support for the allegation that the Complainant was discriminated against on the grounds of race. Therefore, I conclude that the Complainant has failed to establish a prima facie case of discrimination. On this basis, I find the complaint to be unfounded and accordingly, it fails.

The Complaint fails.