Complainant

Respondent

Parties

Mr. Danut  Nae

Tempside Limited Polonez

Representatives

Free Legal Advice Centres

Robert McGarr, B.L., Instructed by De Burca Greene Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057268-001

21/06/2023

The complainant has presented a complaint that he was discriminated against by the above-named respondent on 23/12/2022, contrary to section 5 of the Equal Status Acts, 2000-2018 and in terms of 3(1) b of the Acts when he was treated less favorably due to his connection with a person belonging to a protected group.

He submitted his complaint to the WRC on 21/6/2023.

The complainant submits that he was discriminated against by association, when, though not directly refused access to the store himself, he was not permitted to be accompanied by his wife to enter the respondent’s store on 23/12/2022 because of her protected characteristics, that of race and gender. He suffered upset and embarrassment by virtue of being stopped at the entrance to the shop coupled with the respondent’s refusal to admit his wife to the store, purely by reference to her gender and ethnicity,

The complainant and his wife are of Roma ethnicity.

On 23/12/2022, the complainant and his wife entered through the door of the shop and went to collect a basket, at which point a security guard shouted quite loudly words to the effect, no, the lady is not allowed in the shop.

Evidence of Mr Nae given under oath.

On 23 /12/2022, the complainant went shopping with his wife to the respondent’s Moore St store.

When the complainant ‘s wife went to get a shopping basket, there were two security guards present in the store who approached him at the same time. He heard the first security guard tell his wife that she was not allowed enter the store. The complainant asked him for a reason, and he replied that she is not allowed in the store.

He asked the security man what right he had to refuse entry to his wife and the security man pointed again to the sign on the door which read “We reserve the right to refuse service or admittance to anyone for any reason”.

He asked the security guard if he, also, was debarred, and the security guard pointed to the sign and told him that the manager had authority to refuse admission if she saw fit.

The taller security guard told him that he had orders from the manager not to let gypsies into the shop. The Romanian term he used referred to both males and females. He understood all Roma persons were to be excluded from the shop. The second security guard told him that it was not their decision, but an order from Management.

He was very embarrassed at being addressed like that in front of shoppers of Romani ethnicity, people for whom he advocates.

He telephoned the Gardai who advised that they would not attend because they described it as a civil matter.

He took a photo on his phone at 2pm as he was sure this was discrimination against members of the Roma community.

He returned home, feeling very upset, and has not shopped in that store since.

Cross examination of witness.

He confirmed that up until that point he had shopped in the Moore St store.

As to why his previously reported statement that the first security guard had said it was Roma women who create the problem did not appear in FLAC’s letter to the respondent on 17/2/2023, he replied that both security guards told the complainant that his wife was not permitted to enter the store.

He understood that they wished to deny access to all Roma people,

He advised that it was him and not the complainant who asked why she was not allowed to enter the store.

He confirmed that he recognised the two security guards present in the store on the 23/12/2022 from previous shopping trips though they had never made such remarks to him previously. He stated that he did not recognise them amongst those present on behalf of the respondent today, the 15/12/2023.

He stated that the security man said “Tiganca nu are Voie in Magazin”. This translates as the Gypsy woman is not allowed in the shop. The reference to “Tiganca” or Gypsy is a form of slur on women of Romani ethnicity.

 The respondent denies that the complainant was discriminated against or harassed on 23/12/22 contrary to any of the provisions of the Equal Status Acts, 2000-2018.

The respondent denies that the alleged incident of the 23rd of December 2022 as submitted by the complainant occurred. The complaint forms, and the outline submissions of the complainant dated the 7th of December 2023, fail to disclose that any complaint was actually made on the day of the occurrence itself, and there was no request to speak to a manager or anyone else in authority at the time. The respondent has a reporting structure which involves logging occurrences that occur on their premises on an incident report form and bringing them to the attention of management. In this instance, there is no record whatsoever of anything occurring, and no incident report exists, which would have been of some assistance to assess the complaints now made.

There was a manager on duty on the relevant day, but that individual has no recollection of anything unusual occurring that day. The retail assistants on duty similarly have no recollection of any unusual occurrence or incident involving a member of the public. There was also a security guard on duty, one security guard, not two, as alleged by the complainants. That individual recalls no incident.

Evidence of the Security Administrator given under oath.

The witness has responsibility for the provision of security services for the entire company, comprised of 20 shops.

A maximum of one security guard operates in a store. The witness referred to the roster submitted in evidence which shows that just one security guard was scheduled to work and was present at work on 23/12/2022.

The company gets rid of CCTV footage after 31 days, so by 22/1/2023, the footage had been erased.

Cross exanimation of the witness.

The witness confirmed that the shifts run from 10.00 – 20.00.

He stated that only one security guard, the one in attendance at today’s hearing, Mr S., was assigned to the Moore St. store on 23/12/2022. If the security guard was sick, there would be cover for him.

He advised that the security guard has a lunch break which can run from 12.00 onwards for an hour during which there are no security guards.

He confirmed that those Polonez stores with a security guard in situ have a security administrator/manager.

He refutes the complainant’s statement that another security guard was rostered on that date, nor is a second security guard ever rostered for that store.

The witness confirmed that the sign disallowing entry at management’s discretion is in the store.

Evidence of Security Guard Mr S, given under oath.

He worked on 23/12/22 but cannot recall his exact hours on that date.

He normally works 43-45 hours a week. The respondent does not record lunch breaks.

He does not remember any incident as alleged by the complainant occurring on the 23/12/22.

He has no problem with Roma customers. Fifty percent of customers in the Moore St store are Roma persons and that includes Roma women. He never saw the complainant or her husband just as they never saw him.

He stated that he records security incidents if something happens and of a nature as alleged by the complainant. The respondent keeps a log of incidents. They write down incidents as they occur.

The witness confirmed that the shop assistants’ uniform is black with a red jacket containing the Polonez sign. The security guards wear black.

He does not have a log for the 23/12/

Cross examination of witness.

He takes lunch about 12.00. or 1pm for an hour. He advised that other staff do not come out to take up his position if he is at lunch. If there was a customer stealing produce or was drunk, the manager would deal with it. He states that it is a possibility that the complainant and her husband could have tried to access the store while he was at lunch.

He was the only security guard in attendance on that day.

He accepts that the impugned notice is at the door, but states that’s intended more for drunken persons or thieves. He accepts that the notice does not make any reference to intoxicated persons.

Evidence of the Store Manager given under oath.

The witness is in that position since June 2022.

The store had a mixed customer base, with Asian and Eastern European customers. They sell Romanian, Moldavian, Czech Republic and Ukrainian produce.

The impugned sign is intended for aggressive persons or customers who are intoxicated from drugs or alcohol.

She was rostered on 23/12/2023 so presumes that she was there on that day.

They have an incident book for recording incidents. The security guard would report such incidents to her. No incident was reported to her. She was not called by the security guard. She has no recollection of meeting the complainant or his wife.

Concerning the FLAC letter of 17/2/2023, setting out the incident of 23/12/2022, all such complaints go to their Clondalkin office. She has no recollection of seeing this letter.

Cross examination of the witness.

She stated that she does not keep a record of incoming and outgoing post. All postal communication is sent to Head Office. Regarding the letter of 17/2/2023, she never saw it. No one in the company or the respondent solicitor asked her about this letter. She is unable to explain why Polonez did not answer the questions contained in that letter. Her solicitor didn’t ask her.

She does not remember when she took a lunch break on the 23/12/2022. It is a possibility that the complainant and his wife came during the lunch break.

When the security guard is on lunch break, the staff are more aware and keep an eye out.

To the question as to how someone stopped from entering the shop could make a complaint, she responded that they could call the manager, and if she is on lunch at that time, a customer could ask to speak to the supervisor. The staff member would ask her as manager to deal with the incident. She stated that on average the guard would call her once a week concerning the denial of access to a person intoxicated with drink or drugs or an unstable person.

She denies that the management ever told a security guard in their stores that they were to deny access to Roma women.

She did check the incident book for 23/12/22, and it contains no report of the alleged incident. She does not have the incident book with her. It’s in the shop.

She has never seen the complainant or her husband.

Evidence of Regional Retail Manager given under oath.

He was the area manager in 2022.

He referred to documents submitted on the date of the hearing showing that women constitute 69.7 % of their workforce. The website promotes Romanian folk customs, and the store promotes a Romania day.

It is the main chain in Ireland for Eastern European produce and most of their customers are from Eastern Europe.

Their staff handbook refers to the need to respect diversity and inclusion within staff and customers.

The sign which is being advanced as proof of discrimination against Roma people is designed to make customers and staff feel safe in the store. The witness was uncertain if it was on display in all stores.

Cross examination of witness

The witness accepted that the diversity policy submitted in evidence at the hearing in November 2024, is from the employee handbook.

The respondent solicitor did not advise him of the FLAC letter to the respondent of 17/2/2023 and so he was unaware of its existence until the first hearing day at the WRC.

As Area Manager, he receives every recorded incident. He received no report of this alleged incident.

Conclusion.

The respondent questioned as to whether FLAC’s letter of 17/2/2023 which the complainant asserts meets the requirements of section 21 of the Acts, had been sent to the respondent.

The respondent denies that they discriminated against the complainant under any of the grounds contained in the Equal Status Acts 2000-2018.The respondent’s barrister states that this is a credibility exercise. The burden to establish facts as credible has not been met.

The respondent denies that the incident occurred but even if the adjudicator does accept that it occurred, she is asked to conclude on very slender evidence that discrimination by association occurred. The notice is the only item to which the complainant can point to corroborate their complaint of an incident which the respondent denies happened. It is not corroborative.

The complainant has failed to raise a prima facie case of discrimination, and his complaint must fail.

 I must decide if the complainant was subject to discrimination by association in that it is contended that his wife was discriminated against by the respondent on the combined grounds of race and gender on the 23/12/2022.

The alleged act of discrimination against the complainant was the prohibition on his wife accompanying him into the store. In this way he was treated less favourably than a husband or person accompanying a non-Roma male customer.

The complainant and his wife are of Roma ethnicity.

I am satisfied that the respondent is a provider of services within the meaning of section 6(2) (b) of the Acts.

The requirement to submit an ES.1 form to the respondent.

Though the respondent stated that the complainant had not submitted an ES.1 form, I find the evidence shows that a notification containing the particulars demanded of section 21 of the act was submitted to the respondent on 17/2/2023.

Statutory Framework for this complaint.

Section 5 of the Acts prohibits discrimination in the disposal of goods or the provision of services to the public.

Section 3(1) of the Act as amended elaborates on the forms of discrimination as follows:

“For the purposes of this Act discrimination shall be taken to occur—

(a) 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

Section 3 (1(b) states:

“where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination”.

Burden of Proof.

As a preliminary, I am required to establish if the complainant has met the requirements of S38A of the Acts which sets out the burden of proof which a claim of discrimination must meet. It requires the complainant to establish, in the first instance, facts from which the discrimination alleged -in this instance denying him the option of having his wife accompany him into the respondent’s store-may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

 The Labour Court commented in Cork City Council v McCarthy EDA/21/2008 as follows:

“It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”

The complainant states that he also experienced the inconvenience of and embarrassment at the respondent’s treatment of him and his wife and this amounts to harassment contrary to section 11 (5)(1) of the Acts.

The Equality Officer in Hallinan v. Moy Valley Resources DEC-S2008-25, in interpreting the obligation which a complainant must meet by virtue of section 38 A, held that to establish a prima facie case, the complainant is obliged to satisfy three elements of a test. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant

   discriminatory ground is, has been or would be treated.

This test was followed in other decisions.

The facts submitted by the complainant to raise an inference of discrimination are as follows:

The complainant is relying on section 3(1)(b) of the Acts which confers protection on those claiming discrimination by association.

The specific treatment to which he was subject was depriving him of the option of having his wife accompany him into the store to access goods.

This treatment was less favourable than that afforded to, or which would be afforded to a person accompanying a person not possessing protected characteristics. He/she would not be impeded in the manner experienced by him.

Did the complainant raise a prima facie case of discrimination.

It is the case that the complainant’s wife was a woman of Roma ethnicity.

I accept that the complainant was in the respondent’s store on the 23/12/2022 based on a photo on his mobile phone, recording the date and time.

The specific treatment.

A person claiming discrimination by association must show that he experienced actual discrimination by virtue of the association. The specific treatment meted out to him on the 23/12/2022 was the respondent’s refusal to permit his wife to accompany him into the store. His wife is covered by the protected grounds laid out in sections 3(2)(a) and 3(2)(h) of the Acts.

I find that the complainant’s evidence concerning the specific treatment of him which was the impeded access when accompanied by a person possessing protected characteristics was unreliable. The evidence concerning the existence of two security officers on duty, both of whom he stated approached him at the same time on the 23/12/2022, was undermined by the submission of a roster showing that one security guard, not two, as he claimed, worked on the 23/12/2022. This was corroborated by the oral, sworn evidence of other security personnel. The complainant failed to recognise the sole security guard who worked on the 23/2/20222 and who was in his attendance at the hearing.

I find that the impugned sign in the store offered as the only corroborative detail in support of his complaint of discrimination is not persuasive as such signs are almost universal.

Furthermore, there were conflicting details presented concerning what was actually stated to the complainant on 23/12/2022. For example, he stated in evidence that both security guards told the complainant that his wife was not permitted to enter the store. He stated that the respondent security officer stated that, “Tiganca nu are Voie in Magazin”. This translates as the Gypsy woman is not allowed in the shop. The reference to “Tiganca” or Gypsy is a form of slur on women of Romani ethnicity. As against that he stated in evidence that the taller security guard told him that he had orders from the manager not to let gypsies into the shop. The Romanian term used by that security officer referred to both males and females. And from this he had understood all Roma persons were to be excluded from the shop. His evidence moved from an assertion that Roma women were to be denied entry to the use of a Romanian term which includes all Roma people.

I find the inconsistencies undermine the credibility of the evidence.

I note the comments of the Labour Court in the case of Melbury v Valpeters EDA 0917:

"Section 85A of the Acts 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.”

I cannot find that the evidence was credible as required by Melbury.

The complainant’s account of unwanted conduct was not sufficiently persuasive. I cannot find that the complainant was treated less favourably due to his connection with his wife who belongs to a to a protected group.

I find that a prima facie case of discrimination by association with a person possessing protected characteristics has not been established by the complainant.

The same evidence was advanced to present a complaint of harassment contrary to section 11(5) of the Acts.

I find that the complainant has failed to establish a prima facie case of harassment, due to the conflict of evidence, the inconsistency of the complainant’s oral evidence, and a lack of clarity as to what the respondent security guard actually said to him on the 23/12/2022 when accessing the respondent’s store.

I find that that the complainant has failed to establish a prima face case of discrimination based on his association with a person possessing protected characteristics.

I decide that the complainant has failed to raise a prima facie case of discrimination by association and his complaint must fail.

Discrimination by association.