Complainant

Respondent

Parties

Carmen  Nae

Tempside Ltd Polonez

Representatives

Free Legal Advice Centres

Mr R 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-00057269-001

21/06/2023

The complainant has presented a complaint that she was discriminated against contrary to section 3(1) of the Equal Status Acts (“the Acts”) by the respondent on the race and gender ground and that the complainant was also subject to harassment when she was denied access to the respondent’s store on 23/12/2022.

She submitted her complaint to the WRC on 21/6/2023.

The complainant’s barrister requested an opportunity at the hearing on the 15/12/2023 to make a submission on the topic of intersectional discrimination of race and gender as little case law exists on this. At the end of the hearing, I accepted this request.

A separate complaint of discrimination on the basis of association by the respondent against her husband, Mr. Danut Nae, is before today’s hearing.

The complainant is a woman of Romani ethnicity and is identifiable as such, wearing the traditional long skirts and scarves associated with her compatriots.

The complainant is originally from Romania but has lived in Ireland with her husband and their five children for many years.

The respondent is a limited liability company that trades under the name Polonez and is the provider of goods and services for the purpose of the Equal Status Acts 2000-2015 and therefore bound by the requirements of the said Acts.

The Facts

The Complainants and their son went shopping on the afternoon of 23 December 2022, intent on purchasing a number of traditional Romanian, Christmas food items from the Polonez shop on Moore Street, items not readily available in most Irish supermarkets. They also wished to enjoy an afternoon out just before Christmas with the lights and bustle of the city centre at that time.

Sworn evidence of Ms. Carmen Nae.

She came to Ireland in 2008.

She always shopped in Polonez as they kept Romanian products. Her experience as a customer was good until 23/12/2022.

On 23/12/22, she, her husband and child went to Polonez. She entered the shop, aiming to get a shopping basket. There was a barrier before the entrance to the shop proper. She turned to pick up a basket. A security person told her that she did not have permission to enter the shop. She asked him why. He replied that “gypsies are not allowed in the shop.” She replied that his job was to follow her on camera and if he noticed anything untoward, then and only then could he challenge her. There were two security persons present on that day in the shop.

She was asked if she recognised the particular security officer whom she alleged refused her admission amongst those present at today’s hearing.  She stated she could not remember the person who debarred her. The second security official who came over to her was a big man and explained things in a nice way. The complainant stated that neither the first nor second security man were in attendance at today’s hearing. The second security guard was bigger, and he went back to his security desk. He pointed to the sign, posted on the door which stated, “We reserve the right to refuse service or admittance to anyone for any reason”.

The two security guards on the day spoke Romanian, perhaps they were Moldavian.

The second security guard told her that they had orders from management not to let her into the shop.  She told the first, aggressive security officer, “I’ll see you in court” because she knew what he had said was wrong. He did not reply.

 She left her husband in the shop. He was with the security officers. All the other customers were listening. The complainant went outside the shop to wait for her husband.

She calls herself a gypsy but it’s shameful for a non- Roma person to use that term

To the point that the respondent will state that she did not complain to the manager, she stated, no, she did not, her husband took a photo, and she left.

 She stated she believed she was refused access because she is a member of the Roma community, plus a belief she might cause a problem in the shop.

Cross examination of complainant.

The complainant did not respond to the point put to her that the shop will state that they have no recollection of any incident on that date

She confirmed that she is familiar with the respondent’s shop.

She advised that she had had no problem with Polonez before December 2022.She confirmed that she has shopped in another Polonez branch since December 2022.

She confirmed that she cannot fully remember what occurred on 23/12/2022.

She agreed that the shop was crowded, and people were also outside.

She stated that she did not see Roma women shopping. Roma women were waiting outside the shop while their husbands shopped inside.

She stated that it was a tall security guard who stated that she was not permitted to enter the shop.   To the question was it the tall man who stated gypsies are not allowed enter the shop, the complainant stated that he said “woman / women cannot enter shop.”

Mr. McGarr noted the difference between her own evidence as of now which was

“that woman cannot enter the shop”, and her earlier statement that “gypsies are not allowed in the shop”.

To the question if the statement was said to her directly, the complainant stated that the statement, “gypsies are not allowed in the shop” was said to her husband.

The FLAC representative interjected to say it was her husband who asked the question, and this is contained in their letter of 17/2/23 to the respondent.

The complainant emphasised that the first security guard’s statement that “gypsies are not allowed in the shop” was said in general to herself and her husband.

She did not reply to the respondent’s point that this statement was not contained in her solicitor’s letter of 17/2/2023 to the respondent.

To the question as to whether the second security guard, the bigger man, stated that gypsies were not permitted to enter the shop, the complainant stated that he pointed out the sign reserving the right of admittance to management. He said you cannot come into the shop. That is the order of the manager. He said her husband could come into the shop. The complainant confirmed that the security guard stated to her husband that Roma women were not permitted in the shop. She was told the lady is not allowed enter the store. The complainant stated that the security guard didn’t have a problem with Roma people in general; his problem was with Roma women. There were women in the shop, including a Romanian. 

The complainant stated that she explained this to the solicitor at the meeting at which she and her husband attended.

The complainant stated that she could not fully hear the conversation which her husband was having with someone inside the shop while she was outside on the street.

The complainant confirmed that she did not complain on the day of the incident. Her husband tried to call police and security. No one was there. She did not ask to see the manager. There was no communication for over a month.

The complainant stated that she felt strongly about what happened, it affected her emotionally and psychologically.

In a redirect examination, the complainant clarified that she saw one woman with trousers, loose hair and makeup shopping in the store and stated, when asked, that she was probably a Roma woman.

When questioned, she confirmed that she did not know how long CCTV footage was retained.

Evidence of Mr Nae given under oath.

The witness is the complainant’s husband. He acts as an advocate for members of the Roma community.

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

When the complainant 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 the complainant that she was not allowed enter the store. The witness asked him for a reason, and he replied that she is not allowed in the store. 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 first security guard told him that he had orders from the management not to allow Roma women into 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 acts as an advocate.

He called 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 stated that the complainant 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.

Obligation to submit an ES.1 form.

Regarding the obligations contained in section 21 of the Act, the complainant submits that the letter of notification was sent as is evidenced in the certificate of postage, that it is not necessary to use Form ES 1, and that this letter of 17/2/2023 to the respondent met the notification requirements of the Act.

Burden of Proof.

The complainant contends that the threshold to be met in shifting the burden of proof to the respondent is not a high one and that she has met that burden.

She cites Hangurbadzo v Ladbroke (Ireland) Limited ADJ00030248 where the adjudicator officer stated:

“the claimant must go some way along the line of showing that the less favourable treatment was ‘on grounds of their membership of, or association with, a ground covered by the Act. The point of the burden of proof in section 38A is that the claimant does not have to go so far along the line as a plaintiff in seeking to prove causation on the balance of probabilities in a civil claim.”

The complainant has presented credible evidence of what occurred on 23/12/2022 and the sign in the shop allowing the respondent unlimited power to deny admission corroborates the complainant’s evidence.

The complainant’s solicitor made a supplemental submission on the intersectionality of gender and race.

The FLAC representative refers to a paper by Sandra Freeman, entitled Intersectional discrimination in EU gender equality and non-discrimination law, Publications Office, 2016, which posits that within ethnic groups, black women experience discrimination more that black men. She states that

 “the reliance by discrimination law on a single ground analysis rendered invisible those who were at the intersection of the two grounds”.

FLAC state that the Acts do not expressly prohibit a combined ground nor exclude such complaints or restrict the definition of discrimination to single, multiple or cumulative grounds.

The complainant contends that the Act must be interpreted in light of its social remedial purpose (promoting equality and prohibiting discrimination,) and must be given a purposive and expansive interpretation.

The complainant relies in this regard on the judgment of the High Court in G v The Minister for Social Protection, [2015] IEHC 419, a complaint of discrimination on disability, gender and family status. The appellant had a disability which prevented her from becoming pregnant. She claimed discrimination on the basis of all the grounds combined when the Department refused to pay maternity benefits to her, after the birth of her child by a surrogacy arrangement. While the claim was not successful, this was because of the legislative nature of the scheme concerned rather than any issue with the grounds identified or the lack of a single ground comparator. This is a case where the correct approach to the interpretation of the Equal Status Acts was considered. O’Malley J held as follows:

“Having regard to the objectives of the Act, it must be acknowledged to be a remedial statute. It follows that it must be liberally construed. As described in Dodd on Statutory Interpretation in Ireland (2008 Tottel) at paragraph 6.52:

    “Remedial social statutes and legislation of a paternal character favour a purposive

     Interpretation and are said to be construed as widely and liberally as can fairly be done

     within the constitutional limits of the courts’ interpretive role. This formula has been repeated

     in a number of cases [citations at fn. 82 p.179]. Remedial social statutes are enactments

     which seek to put right a social wrong and provide some means to achieve a particular social

     result.”

FLAC pointed to the long title of the Act which should enable a complaint-based on intersectional grounds to be admissible.

FLAC proceeded to point to the authorities acknowledging the existence of intersectional discrimination, citing Ms. Barbara Lindberg v Press Photographers Association of Ireland, DEC-S2011-041, in which two grounds were relied on by the complainant: gender (being a woman) and race (being of a different nationality). FLAC argue that this was not a case of compounding or additive discrimination, the grounds were interdependent in the complaint.

The equality officer stated:

"Therefore, considering all of the circumstances surrounding the applications, I find that the complainant has established sufficient evidence to show that her race had at least an indirect impact on her first application because the respondents did not attempt to seek information outside their immediate circle. In the second application, I find that the totality of circumstances, which includes her race and gender, again put her into the category of "outsider" and this had an impact on the second decision to deny her membership.

The complainant contends that O’Brien v Computer Scope Limited, (DEC-E2006-030), another case referred to by the respondent in their submissions, is, in fact, a further example intersectional discrimination, combining the grounds of age and gender. The case concerned a claim by a woman that she was not receiving equal pay by reference to two older male comparators. Of relevance is the following analysis of the Equality Officer:

“It is therefore not in dispute that the complainant and Mr. CT were engaged in like work and that the complainant received less pay than Mr. CT, her predecessor in the post who was older and male. I consider that the complainant has therefore established a prima facie claim of discrimination on the gender and age grounds in relation to her pay. I must therefore proceed to consider whether the respondent can rebut the complainant's claim.”

FLAC contends that though not explicitly stated to be a claim based on intersectional discrimination, it is evident that the two grounds were not separated, and the complainant was able to establish her claim based on being both younger and of a different gender to her two comparators. Her claim did not rely on proving the gender and age ground separately, and her complaint was successful on the basis of the combination of both grounds.

The complainant’s complaint of intersectional discrimination relying on the cited authorities satisfies the requirement to be covered by a protected ground.

The complainant has, thus, met the burden of proof.

Conclusion.

The FLAC representative submits that:

The notification to the respondent is compliant with section 21 of the Act.

The evidence of the complainant is credible.

The photo image of the sign is recorded at 2pm, the time of the incident.

There is no incident book; a difficulty exists in testing, therefore, if there is in fact a record as denied.

The notice gives wide discretion to exclude.

The authorities support her complaint of discrimination.

The complainant has raised a prima facie case of discrimination and requests that her complaint be upheld.

The respondent denies that the complainant was discriminated against or harassed on any of the grounds under the Acts.

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.

 In the absence of a complaint arising from a particular event, the store’s CCTV is wiped after a month. That is considered a reasonable interval and is common practice in the retail sector.

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 in the store 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 Friday 23/12/2022, nor is a second security guard ever rostered for that store. Mr S had been rostered for the entire week. If the security guard was sick, there would be cover for him.

The Moore St store experiences a lot more anti -social behaviour than other stores.

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

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

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.

His normal hours are 43-45 a week.

He does not remember any incident 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. He does not have a log for the 23/12/2022 with him today.

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

They do not record lunch breaks.

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.

Concerning the frequency of refusing customers, it would occur about once a week in the case of drunken persons or people stealing. In this circumstance, he would consult the manager and record it in the incident book.

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. She has no recollection of meeting the complainant or her husband. She was not called by the security guard.

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. She never saw FLAC’s letter of 17/2/2023. To the question was it possible that she received FLAC’s letter and does not recall, she replied that she is not sure, maybe it is possible. 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 stated that there were 11 shop assistants plus herself in the Moore St store.

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 does not remember when she took a lunch break on the 23/12/2022. It is a possibility that the complainant and her husband 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 has never seen the complainant or her husband.

Evidence of Regional Retail Manager given under oath.

He was the area manager in 2022. The Moore St store was under his remit.

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.

He has never heard of any policy targeting or discriminating against Roma people.

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 at the WRC.

He does not know if the alleged discriminatory sign is up in all stores.

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

Legal arguments.

The respondent notes that the complainant is not arguing that she was discriminated on gender grounds simpliciter as women are readily admitted to the store and were there on that date, nor is she arguing that she was discriminated against on the grounds of race as Roma people and her husband were admitted to the store. She is arguing that the combination of the two is what constitutes discrimination. It is only when gender intersects with race and race intersects with gender that the act of discrimination arises.

The respondent accepts that a complaint can be made on multiple protected grounds, but discriminatory behaviour /acts must have occurred under each of the separatee protected grounds and do not need to be attached to another ground to amount to discrimination.

He cites Flanagan Talbot v Casino  Cinemas Ltd t/a Killarney Cineplex Cinema (DEC -S2008 -053) , (family status and gender), and  O’Brien V. Computer Scope Limited (DEC-E2006-030), (age and gender), which accept that discrimination can occur on more than one ground, but the concept of what is sometimes referred to as “intersectional discrimination” or “compound  discrimination” is seen as problematic in the statutory context of the Equal Status Acts. Judy Walsh, Blackhall Publishing, at paragraph 3.3.10. refers to section 25(1)(A) of the Act as amended, which permits multiple grounds to be presented as one complaint, but this section also requires a decision under each ground.

The case-law suggests that discrimination on one ground can be compounded or augmented by discrimination on another, such as in Ms Barbara Lindberg v Press Photographers Association of Ireland, DEC-S2011-041.

Aside from the fact that the incident as presented is denied, there is no authority for the contention that intersectional discrimination is a valid ground to support a complaint of discrimination.

Conclusion.

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 occurred. There was no second security guard as the roster produced in evidence indicates, so no overlapping, as suggested, could have 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.

On the previous occasion on 15/12/23, they stated that they had rung the garda but that they did not come.

They did not attempt to speak to the store manager. The store manager or a supervisor were there. She would have seen the incident.

The complainant made no phone call, made no request for CCTV footage, and lodged the complainant just within the statutory time limit.

The respondent requests that the complaint be dismissed.

I must decide whether the respondent discriminated against the complainant contrary to section 5 of the Act in failing to provide goods, service or facilities and in terms of section 3(2)(a) and 3(2)(h) of the Equal Status Acts, 2000-2018.

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

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.

Relevant law

Section 3 (1) of the Act states

“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,

Section 3 (2)  sets out the discriminatory grounds

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status ( the “civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), 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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

Burden of Proof.

In any complaint of discrimination, the first step for a complainant is compliance with Section 38A (1) of the Act. It provides that the burden of proof rests with the complainant and means that

" 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 in relation to him or her, it is for the respondent to prove the contrary."

As a preliminary, I am required to establish if the complainant has met the requirements of S38A of the Act. The complainant must establish, in the first instance, facts -in this instance the alleged denial of access to the respondent’s store on the basis of her gender and ethnicity- from which the discrimination alleged 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 facts and arguments submitted to raise an inference of discrimination are as follows:

The complainant contends that she enjoys protection under two interdependent grounds identified in the act; she is a female, and she is a member of the Roma community.

She was stopped by the respondent in accessing the purchase of goods because she was a Roma woman.  Roma male shoppers were allowed access the store,

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 exists, 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.

Application of the law and the above test to the circumstances of the instant case.

Is the complainant covered by the relevant discriminatory ground?

The complainant accepts that women were not denied access to purchase goods in the store. The complainant accepts that Roma men were allowed access to the store. The complainant asserts that her claim of intersectional discrimination, that is the combination of race and ethnicity, constitutes a protected ground, comes within the ambit of the Act, and enjoys the protection of the Act.

The complainant argues that such a ground though not expressly contained in the Act is admissible, is not prohibited and the Act is purposive. The complainant’s solicitor while admitting the authorities are thin on the ground on this subject refers to a paper by Sandra Freeman, titled Intersectional discrimination in EU gender equality and Non-discrimination law, Publications Office, 2016.which records that within ethnic groups, black women, for example, experience discrimination more that black men. She states that

The reliance by discrimination law on a single ground analysis rendered invisible those who were at the intersection of the two grounds”

I acknowledge the argument presented on behalf of the complainant that the Roma community is a marginalised community but it’s the complaint from this member of the Roma community upon which I must adjudicate and not a particular cohort of women.

The complainant argues that in the instant case, the ground of race and gender, when joined together (she is Roma and female), combine to validate her complaint that the denial of access to the store constitutes the act of discrimination and becomes justiciable. I accept that the Act does not prohibit the combination of grounds, and I will consider the authorities cited by the complainant to underpin her complaint.

In G v The Minister for Social Protection, [2015] IEHC 419, an appeal based on family status, gender and disability, the case for intersectional discrimination, that is making any one of the grounds dependent on either one or two of the other grounds in order to raise a prima facie case was not advanced or addressed. Each element of that appellant’s complaint was argued and pleaded separately. The decision recognised disability as a discrete ground. Disability did not need to be hitched on to the family status or the gender ground to render it justiciable.

That appellant was denied the statutory benefits because her surrogacy was not encompassed by the statutory code which permitted payment of benefits to natural and adoptive mothers. O’Malley J held that the Equal Status Act cannot be relied upon to determine that there is discrimination contrary to this Act found in another Act nor cannot the Equal Status Act be used to invalidate another statute.

The complainant also relies on Khedi Bisaye v Westend Management Ltd E/S/2009/07. But it is rather tenuous to import an acknowledgement of intersectional discrimination when that complaint was submitted under the race grounds and was upheld on the race grounds as a discrete, standalone instance of discrimination without the need for gender to plump it up to satisfy the first limb of the test necessary to establish a prima facie case of discrimination. The complaint of discrimination on the grounds of race was capable of survival in itself without the life support offered by the gender ground.

In Ms Barbara Lindberg v Press Photographers Association of Ireland, DEC-S2011-041, the complainant made two unsuccessful, separate applications at different times for membership. The Equality Officer stated

 “ I find the combination of the complainant’s circumstances in this case is significant.  She is both female and non- national which puts the complainant automatically outside of the group in certain ways. This means if any element of discrimination is made out, the complainant must be successful.

 On balance therefore I find that the process used in the complainant's first application was discriminatory towards her on the grounds of her nationality.

This finding of racial discrimination concerning this first instance of discrimination is not rendered viable by an infusion of gender discrimination or dependency on gender. The equality officer stated that

“if any element of discrimination is made out, the complainant must be successful”.

Race is a separate and intact ground. The contravention of the Act on grounds of race was made out and was upheld.  

Continuing, the equality officer stated

“In the second application, I find that the totality of circumstances, which includes her race and gender, again put her into the category of "outsider" and this had an impact on the second decision to deny her membership”.

I do not find the term totality is synonymous with the term interdependency.

In Ciara O’Brien v Computer Scope Limited, DEC E2006-030.

The Equality officer stated

“The complainant established a prima facie case of discrimination on gender grounds as it was accepted that she was doing like work with her older predecessor.”

The equality officer stated that she must consider if the difference in pay was due to gender and/ or age. She was earning less than her male predecessor engaged on like work. Gender discrimination was accepted.  So, two separate and independent grounds were under the microscope. That finding of discrimination on gender grounds could survive intact, was viable and was not dependent on the fact that her comparator was older than her. Separately the comparator was older and separately was male. It was gender and age. She had a comparator on both separate single grounds.

The complainant in the instant case does not.

The equality officer stated that the complainant had established a prima facie case of discrimination on race grounds which the respondent had failed to rebut

Unlike in Ciara O’Brien, the instant complaint does not contain a free-standing ground, for example gender untethered to race or vice versa.

 I cannot find therefore support for the proposition that the intersection of race and gender as pleaded in this complaint is supported by the cited authorities who all made complaints on discrete grounds and added other grounds.

Furthermore, the Act at section 25(1A) states that:

(a) Claims to have been discriminated against on more than one of the discriminatory grounds (other than the victimisation ground) shall be investigated as a single case, and

(b) claims to have been discriminated against on discriminatory grounds which include the victimisation ground may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.

(My emphasis)

This section would seem to apply that complaints on different grounds are separate, distinct and viable in their own right.

Based on the law and the authorities, I cannot, therefore, accept that this complaint, based not on two discrete grounds, but on an interdependence of two grounds confers cover under a protected ground. Given that conclusion, I find that the complainant is unable to make out a prima case of discrimination based on two grounds neither of which is viable nor capable of surviving independently.

A complaint of harassment.

The complainant submitted that the statements made to her by the security guard on 23/12/2022, amounted to harassment on the gender and race grounds. The complainant is a female member of the Roma community.

Relevant Law

Section 11(5) of the Act states:

“(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If that succeeds, the employer must then prove that harassment did not take place, either through the rebuttal of claims or by presenting grounds demonstrating that they took reasonable steps to prevent harassment.

The complainant submits that the statements made to her at the entrance to the respondent store by the respondent’s security officer, “gypsies are not allowed in the shop” on the 23/12/2022, amounts to unwanted conduct.

She has also explained that the use of term gypsy by a non- Roma person is considered to be a shameful act

In the instant case, I find that the evidence underpinning the complaint of harassment against the complainant on the 23/12/2022, was unreliable. The evidence concerning the existence of two security officers on duty on that date was undermined by the submission of a roster showing that one security guard, not two as claimed by the complainant, worked on the 2/12/2022, his attendance at the hearing and the failure of the complainant to recognise him. Furthermore, there were conflicting details presented concerning what was actually stated to the complainant on 23/12/2022.The examples were inconsistent. I find insufficient detail to support the claim of harassment, and I note the comments of the Labour Court regarding such "mere assertions" 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.”

The evidence from which I could reasonably conclude that the complainant experienced unwanted conduct was not sufficiently persuasive. I find that the complainant failed to establish a prima facie case of harassment.

I find that that the complainant has failed to establish a prima face case of discrimination based on the interdependent grounds of race and gender.

I decide that the complainant has failed to establish a prima facie case of discrimination or harassment on grounds of race and gender. The complaint fails.

Intersectional discrimination.