Complainant

Respondent

Parties

Nadine  Lattimore

Tesco Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Mr. Michael Kinsley, BL instructed by J. Curran & C. Shiel, Mason Hayes & Curran 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-00062131-001

11/03/2024

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

CA-00066467-001

02/10/2024

The Complainant attended the premises of the Respondent at Parnell St., Dublin on 4 October 2023 and on 23 October 2023 at which time she alleged she was treated unlawfully by the Respondent by discriminating against her right to access goods, services or facilities.  The Complainant is visually impaired and is a user of a Guide Dog. (CA-00062131-001)

The Complainant attended the premises of the Respondent at Adamstown on 3 June 2024, the premises at Spencer Dock on 16 July 2024 and the premises at Parnell St., Dublin on 16 July 2024 at which time she alleged she was treated unlawfully by the Respondent by discriminating against her right to access goods, services or facilities (CA-00066467-001)

The Respondent denied the allegations and instead submitted that it made respectful enquiries regarding the status of the dog accompanying the Complainant, that such enquiry was not unlawful discrimination under the ESA 2000 and that the Complainant was not prevented from obtaining the goods and services made available by the Respondent. 

The Complainant submitted that she is registered blind and is a user of a Guide Dog for over 16 years.

She submitted that her complaint relates to 5 separate incidents spanning October 2023 to July 2024 where she contends that she was the subject of less favourable treatment on the grounds of her disability, and that she was not provided with reasonable accommodation by the Respondent, contrary to the provisions of the Equal Status Act.  She contends that on each occasion she was with her clearly identifiable harnessed Guide Dog, Pilot, who was assisting her and upon whom she relies, to access the Respondent’s services.  She outlined that the equipment worn by her Guide Dog as issued by Irish Guide Dogs for the Blind (IGDB) included a white leather body harness with 2 IGDB identifiers, a high visibility yellow handle piece with sign “Please don’t distract me - I’m a working Guide Dog!”, and a high visibility yellow IGDB flash on the lead. She outlined that an IGDB medallion attached to the collar contains the dog’s unique registration number and that she also carries an identification card issued by IGDB, outlining the status of the dog as a registered assistance animal.  The Complainant provided copies of all identification referred to in the foregoing paragraph.

The Complainant set out the following chronology of events

·       CA-00062131-001 - Parnell Street:

·       Incident I - The Complainant visited the premises of the Respondent, Tesco Metro, Parnell Street, Dublin 1 on the 4th of October 2023, accompanied by her Guide Dog. After entering she was repeatedly and loudly addressed across the shop floor by a security member regarding permission of her dog’s presence.

·       Incident II - The Complainant visited the premises of the Respondent, Tesco Metro, Parnell Street, Dublin 1 on the 23rd of October 2023, accompanied by her Guide Dog and a minor. A security member followed them through the store, approaching the Complainant that dogs are not allowed.

·       CA-00066467-001 - Adamstown

·       Incident III - The Complainant visited the premises of the Respondent, Tesco Superstore, Adamstown, Co. Dublin on the 3rd of June 2024, accompanied by her Guide Dog and a minor. A security member followed them through the store, approaching the Complainant that she is not allowed in the store with a dog.

·       CA-00066467-001 -Spencer Dock

·       Incident IV - The Complainant visited the premises of the Respondent, Tesco Express, Spencer Dock, Dublin 1 on the 16th of July 2024, accompanied by her Guide Dog. After entering the store, a security member told the Complainant that dogs are not allowed.

·       CA-00066467-001 - Parnell Street:

·       Incident V - The Complainant visited the premises of the Respondent, Tesco Metro, Parnell Street, Dublin 1 on the 16th of July 2024, accompanied by her Guide Dog and a minor. After entering the store, a security member followed the Complainant and told her that she is not allowed to come in with the dog.

The Complainant submitted that on multiple occasions Subject Access Requests (SARs) were made to the Respondent, beginning 24 October 2023 by email. Each verbal and email request was valid and should have been actioned in accordance with the General Data Protection Regulation (GDPR). She contended that the Respondent failed in their duty as Data Controller to provide requested data to her. She further contended that on 19 March 2025 following contact from the Data Protection Commission, the Respondent replied to the Complainant’s SARs, only partially fulfilling the request for personal information.

The Complainant submitted that on 15 August 2024, the Respondent sent an acknowledgment to the Complainant regarding receipt of ES1 equivalent written notification and that on 29 October 2024, the Respondent sent ES2 responses in relation to incident, incident IV and, incident V.

Summary of communications with Tesco

The Complainant noted that Section 5 (1) of the ESA prohibits discrimination in the following terms: - “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

She also noted Section 3 of the Equal Status Act 2000 which defines discrimination as: - “(1) 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, Or (c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The Complainant further noted that the protected grounds are set out in section 3(2) and include: - “(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”)” (j) that one—(iv) has opposed by lawful means an act which is unlawful under this Act, and the other has not (the “victimisation ground”). And again she noted that special treatment/reasonable accommodation is defined in Section 4: - “4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.

The Complainant submitted that the meaning of the act had been clearly interpreted in the case of the Supreme Court in Kim Cahill v Minister for Education and Science 2017 IESC 29, where McMenamin J stated at paragraph 45: - “The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas… the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the legislature.”

The Complainant outlined that in respect of the duty to provide reasonable accommodation under section 4, McMenamin J stated at para 58: - “The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability.” She further outlined that at paras 62-63, he stated: “In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service… The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element, (which does not arise in this case), but second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient.”

The Complainant also cited that in the Court of Appeal in the case of Smith v The Office of the Ombudsman & Others [2022] IECA 99, the Court confirmed that the ESA and the regime provided thereunder were: - “processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted.”

The Complainant acknowledged that under section 38A (1) of the ESA, she must establish a prima facie case of discrimination and in this regard, that she must establish facts from which it may be presumed that prohibited conduct had occurred. The Complainant also acknowledged that the test for what constitutes a prima facie case has been set out in a number of decisions of the Labour Court, in particular, in Southern Health Board v. Teresa Mitchell [2001] E.L.R. 201 and Valpeters v. Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case at p.68, the Labour Court stated that: “Section 85A of the Act 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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.”

The Complainant submitted that based on the information set out above, supplementary information, and the evidence to be provided by the Complainant at the hearing, it is clear that the Complainant has a disability, and that she was treated less favourably by the Respondent, who was providing a service within the meaning of section 5 of the ESA. The Complainant relied upon the decision of the Equality Officer in Maughan v The Glimmer Man Ltd DEC-S2001-020. In this case, the Equality Officer held: - “I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and SocialServices Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations.”

The Complainant referred to the textbook Equal Status Acts 2000-2011 where the author Judy Walsh commented at page 104 that the above decision recognised that a claim of direct discrimination could be sustained where a service provider failed to treat persons differently. The Complainant submitted that the Labour Court also recognised that the application of the same rules to different situations could amount to discrimination in its decision in Campbell Catering v Rasaq [2004] ELR 15 and noted that the denial of a service in such circumstances also amounted to a failure to provide reasonable accommodation under section 4(1) of the ESA.

The Complainant also cited the case of Roche v Alabaster Associates Ltd t/a Madigans DEC-S2002-086 and Moloney v Park House Hotel DEC-S2008-073 and noted that in Moloney, the Equality Officer stated: - “[a guide dog is] not just a pet…it had a specific purpose and function; its owner was visually impaired and requires the use of the dog to find his way around…the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise.”

The Complainant also relied on the decisions from Adjudication Officers of the WRC in the claims of Pamela McKeogh v Kilkenny House Hotel ADJ-00027292 and Sophia Brennan v KOA ADJ-00038210. This latter decision involved the refusal by a restaurant to allow the complainant’s guide dog onto the premises. The respondent contended that it provided a number of accommodations to the complainant including an offer of eating at a table outside on the footpath. The Adjudication Officer in finding for the complainant commented: “The dog should simply be accommodated on arrival... There is no suggestion that the Complainant was asked to wait or come back so as to allow the Restaurant to re-configure tables or already seated parties so as to accommodate the Complainant. The Complainant was treated as “other”, her dog was insulted, and she was sent away.”

Additionally, the Complainant also relied upon the decision from the Adjudication Officer of the WRC in the case of Nadine Lattimore v Dealz ADJ-00047431. The Adjudication Officer in finding for the Complainant commented: “As a person with a disability, she feels she should not be put into a position of having to identify her disability or explain it. In her case, there is no ambiguity. This is evidenced by the presence of a guide dog with all the associated paraphernalia… I am satisfied that even the most cursory of glances would immediately identify Pilot as a working dog.”

The Complainant submitted that furthermore, in the case of Nadine Lattimore v Dealz ADJ-00047431, the Adjudication Officer’ decision includes: “I do not distinguish between staff employed directly by the Respondent and Agency or Contracted staff on the premises. The Complainant was an Invitee on to the premises, and the Respondent is a Service Provider. All staff on the premises need to be trained up in all matters of the Equal Status Act.”

The Complainant submitted that she has established a prima facie case of discrimination and failure to provide reasonable accommodation as required and further submitted that the Respondent has failed to rebut the inference of same.

In conclusion the Complainant submitted that what occurred on the 4 October 2023, 23 October 2023, 3 June 2024, and twice on 16 July 2024, by the Respondent was discriminatory, and that the Complainant was othered on 5 occasions. She further submitted that what occurred on 23 October 2023, 3 June 2024, and on 16 July 2024 in respect of the minor, was discrimination by association to the Complainant and that the minor was othered by the Respondent on 3 occasions.

The Complainant submitted that should any compensation for discrimination be awarded, that it be effective, proportionate, and dissuasive. She submitted that this is a fundamental principle which is enshrined in Article 19 of the Treaty on European Union, in Article 47 of the Charter of Fundamental Rights of the European Union and also in case law from the ECJ. Additionally, the sought a recommendation that the Respondent’s staff members/subcontractors are trained on a repeat basis on the provisions of the ESA and the duties of service providers thereunder.  Finally, the Complainant sought an order that the Respondent demonstrate its continued commitment and compliance with the ESA by displaying “Guide Dogs & Assistance Dogs Welcome” signage at their entrance, which can be furnished to them by the Irish Guide Dogs for the Blind.

At the outset the Respondent confirmed that it did not contest the fact that the Complainant was visually impaired and used the services of a guide dog nor did it contest that the Complainant was a person with a disability within the meaning of the Equal Status Act 2000.

The Respondent noted that the Complainant had submitted the following complaints under the ESA 2000:

·       CA-00062131-001

Complaint lodged on 11 March 2024 and referred to two alleged incidents of discrimination on 4 October 2023 and 23 October 2023 in the Respondent’s Parnell Street store.

·       CA-00066467-001.

Complaint lodged on 2 October 2024 and referred to three alleged incidents of discrimination on 3 June 2024 at the Respondent’s Adamstown store, 16 July 2024 at the Respondent’s Spencer Dock store and 16 July 2024 at the Respondent’s Parnell Street store.

Parnell Street Store - 4 & 23 October 2023

 In its submission the Respondent accepted that the Complainant attended at its Parnell Street Store on 4 and 23 October 2023.

The Respondent submitted that its policy is to facilitate persons with a disability to access its stores and that guide dogs are permitted in its stores. The Respondent submitted that it did not accept that the Complainant was at any point informed that she couldn’t have a Guide Dog on the Respondent’s premises.

The Respondent submitted that the Complainant entered the Respondent’s Parnell Street Store on 4 and 23 October and on both occasions, she had an interaction with a security worker employed by OCS Security. The Respondent further submitted that it appeared to be accepted by the Complainant, in her email to the Respondent of 5 October 2023, that the security worker merely enquired about her dog and the Complainant informed him that it was a Guide Dog. It also As appeared to be further accepted by the Complainant in her email of 5 October 2023, that the employee of the Respondent who the Complainant referenced in that email, confirmed that the Complainant’s guide dog was permitted in the store. At all times the Complainant was treated with respect and was permitted to go about her business in the store. When the Complainant sought to speak to a manager at the store this was facilitated.

Adamstown Store - 3 June 2024

The Respondent submitted that the Complainant attended at the Respondent’s Adamstown store on 3 June 2024 and noted that the Respondent’s premises at Adamstown is situated in a shopping centre. The Respondent outlined that OCS Security provides security personnel who supervise the common areas of the shopping centre and that the Respondent does not engage security personnel, either directly or through OCS Security to staff the common areas of the shopping centre. Therefore, any security personnel patrolling the common areas of the shopping centre are not in the employment or under the control of the Respondent.

The Respondent submitted that it appeared from the ES2 form sent by the Respondent to the Complainant, that the Complainant was followed into the Respondent’s store by an OCS Security Officer who was working in the common areas of the shopping centre and was engaged on behalf of the operators of the shopping centre and not the Respondent. The Respondent outlined that the manager of the Respondent’s store, Muhammad Shakeel, was approached by the OCS Security Officer and was informed that the Complainant was in the Respondent’s store with her dog. Mr. Shakeel, in compliance with the Respondent’s policy, informed the OCS Security Officer that the Complainant was entitled to be in the store with her Guide Dog. The OCS Security Officer apologised to the Complainant.

 The Complainant was not prevented from entering or carrying out her business at the Respondent’s store on 3 June 2024 and the OCS Security Officer with whom the Complainant interacted was not employed by or contracted by the Respondent.

Spencer Dock - 16 July 2024

The Respondent accepted that the Complainant entered the Respondent’s Spencer Dock store on 16 July 2024 accompanied by her guide dog but submitted that the Complainant’s dog was not wearing a “high-vis vest” but did have a harness and collar with high-vis markings. The Respondent outlined that the Complainant was informed by a security officer, employed by OCS Group Ireland Limited that dogs were not permitted in the store. The security guard had not noticed the markings on the guide dogs’ harness and was not informed by the Complainant that the dog was a guide dog. Instead, the Complainant asked to speak to a manager.

The respondent submitted that Gytis Jundulas, who was the store manager at the Respondent’s Spencer Dock store on the relevant date, spoke with the Complainant. Upon arrival, Mr. Jundulas noticed that the Complainant’s dog was a guide dog and apologised to the Complainant.

The Complainant sought the security guard’s ID number and was assisted in this regard by Mr. Jundulas. Mr. Jundulas confirmed to the Complainant that the Respondent’s policy was to permit guide dogs and assistance dogs in its stores.

Parnell Street Store - 16 July 2024

The Respondent accepted that the Complainant attended at the Respondent’s store at Parnell Street on 16 July 2024 and submitted that on entering the store, a security officer employed by OCS Group Ireland Limited approached the Complainant and informed the Complainant that dogs are not allowed in the store. The Complainant immediately requested to speak with a manager. The Respondent submitted that the Complainant’s dog was not wearing a high vis vest but was wearing a high vis harness and a lead. The security officer apologised for not recognising that the Complainant’s dog was an assistance dog.

The Respondent submitted that it’s duty manager, Mary Power, was asked to come and speak to the Complainant. The Complainant told the duty manager that on entering the store she was stopped by the security officer who told the Complainant that she could not have her dog in the store. Ms. Power apologised to the Complainant, took the Complainant’s details and confirmed that she would inform OCS Group Ireland Limited, the security officers’ employer, of the incident and request that they take action with their employee to ensure that this could not happen again. Ms. Power also confirmed to the Complainant that she would inform the security officer that assistance and guide dogs were permitted in-store.

The Respondent outlined that on the 16 July 2024, the duty manager telephoned OCS Group Ireland Limited and reported the matter requesting that OCS Group Ireland Limited ensure that the security officer be provided with training on accessibility to the Respondent’s stores for persons living with disabilities.  The Respondent submitted that the National Council for the Blind of Ireland (NCBI) contacted Michael Kirwan at OCS Group Ireland Limited on the Complainant’s behalf on or about the 17 July 2024 and requested information about the incident. Mr Kirwan contacted the Respondent’s duty manager in store, and they discussed what had happened. The Respondent’s duty manager later followed up with Mr Kirwan when he assured the duty manager that the Complainant had been contacted by OCS Group Ireland Limited and that the security officer had been provided with training on accessibility to the Respondent’s stores.

Respondent Policy

The Respondent submitted that it had a policy on access to its store premises by guide dogs and that this policy permits guide dogs and assistance dogs to be present in the Respondent’s stores. The Respondent submitted that no other dogs are permitted. The Respondent advised that it supports Irish Guide Dogs and My Canine Companion and has donated significant sums to both organisations.

Preliminary Matters - Requirement to send ES1

The Respondent noted the Complainant claimed to have suffered discriminatory treatment at the Respondent’s store at Parnell Street on 4 and 23 October 2023. The Respondent submitted that without prejudice to the it’s position that no discriminatory acts were carried out by it in respect of the Complainant, that the Complainant had failed to comply with the notification requirements under the ESA 2000 and that the WRC therefore did not have jurisdiction to consider the complaints in respect of 4 and 23 October 2023.

The Respondent noted Section 21 of the ESA 2000 which provides, at paragraph (2) “Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of— (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,”

The Respondent submitted that the Complainant failed to provide the required notification to the Respondent and noted that in the WRC claim form, the Complainant stated that email correspondence with the Respondent after the alleged incident of 4 October 2023 contains the matters required under Section 21(2). The Respondent submitted that it was, however, clear from the contents of the said emails, that they do not contain an assertion of the Complainant’s intention to proceed to the WRC in default of a satisfactory response.

The Respondent submitted that the Complainant is therefore prejudiced in its defence of the matters alleged to have occurred on 4 and 23 October 2023 and submitted that the failure of the Complainant to comply with the requirement under Section 21 was a matter which deprived the WRC of jurisdiction to consider the complaints alleged to have occurred on 4 and 23 October 2023.

Correct Respondent

The Respondent noted that the Complainant’s claims arose from alleged discrimination which the Complainant asserted occurred on 4 separate dates. The Respondent submitted that without prejudice to it’s position that no discriminatory treatment of the Complainant took place, the Respondent submitted that each of the accusations of discriminatory treatment was alleged against employees of OCS Group Ireland Limited. OCS Group provides security services under contract to the Respondent. Consequently, the Respondent submitted that, in the first instance OCS Group is the correct Respondent regarding any accusations of discrimination by its employees. The Respondent submitted that it appeared that the Complainant had commenced proceedings against OCS Group and submitted that OCS is the correct Respondent.

The Respondent noted that Section 42 of the ESA 2000 provides for vicarious liability to be imposed on parties in certain circumstances, it states “(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. (2) 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. (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee— (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.”

The Respondent submitted that the OCS employees who the Complainant accused of discrimination were not acting “with the authority” of the Respondent if (which is denied) they excluded the Complainant from the Respondent’s stores with her guide dog. All staff and workers at the Respondent’s premises were obliged to follow the Respondent’s policies on guide dogs and assistance dogs which permits such dogs into the Respondent’s store. Therefore, any actions on the part of OCS employees to the contrary were not carried out “with the authority” of the Respondent. Equal Status Act 2000

The Respondent noted that the within proceedings concerned a claim by the Complainant that she suffered discrimination, contrary to the provisions of the Equal Status Act 2000, as amended (the ESA). The Complainant claimed that this prohibited conduct was based on her disability.

                                                                                                                                                                                                                                                                                                                                                                           The Respondent cited the following relevant sections of the act:

Section 3(1) of the ESA  which provides “(1) 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) of the ESA provides the “discriminatory grounds”, including at subparagraph (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”)”.

Section 4(1) of the ESA provides “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

Section 38A(1) of the ESA provides “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.”

The Respondent submitted that it is therefore, in the first instance,  for a Complainant to “establish” facts from which it can be presumed that prohibited conduct occurred. In the instant case, it is submitted that the Complainant bears the burden of establishing the facts which she claims were the basis of the prohibited conduct. It is submitted that the Complainant has not provided the WRC with evidence which establishes that she was discriminated against on the grounds of disability. It is submitted that when it became clear to staff at the Respondent that the Complainant’s dog was a guide dog, she was immediately accommodated in accessing goods and services. It is submitted that evidence that the Complainant was asked about her dog does not amount to discrimination.

The Respondent noted that in Dyfen Publications Limited v. Diana Spasic (ADE 08/7) the Labour Court (adopting the approach of the UK Court in Madrassy v. Nomura International plc [2007] IRLR 246 stated that “…the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent”.

The Respondent submitted that the management at its stores owed a duty to other customers and other staff to act in a reasonable manner in implementing its policy on customers being accompanied by dogs and that the actions of the staff at the Respondent’s store were proportionate and reasonable and they were entitled to take reasonable steps to ensure that only guide dogs were permitted on the premises.

The Complainant was not treated any differently as a result of a disability.

In the instant case, the Respondent submitted that, taking the Complainant’s complaints at their height, they amounted to an objection to a reasonable enquiry from security personnel at the Respondent’s stores regarding whether the Complainant’s dog was a guide dog. The Respondent further submitted that it had a legitimate and lawful policy which permitted only guide dogs to its stores. The Respondent submitted

·       That it and its employees had an entitlement to make discreet and respectful enquiries to ensure that its policy regarding dogs in its premises was being complied with.

·       That the Complainant was not treated any differently to any other individual who arrived at the Respondent’s premises with a dog.

·       That where it was unclear to the Respondent’s employees that the relevant dog was a guide dog, the Respondent was entitled to make a respectful enquiry from the dog owner.

In conclusion, the Respondent submitted that the Complainant herein was not prevented from obtaining the goods and services made available by the Respondent and that a respectful enquiry regarding the status of the dog accompanying the Complainant did not amount to unlawful discrimination under the ESA 2000

Preliminary Matter - CA-00062131-001

In relation to the complaint that the Complainant suffered discriminatory treatment at the Respondent’s store at Parnell Street on 4 and 23 October 2023 the Respondent submitted that the Complainant had failed to comply with the notification requirements under the ESA 2000 and that the WRC therefore did not have jurisdiction to consider the complaints in respect of 4 and 23 October 2023.

I noted that at hearing the Complainant confirmed that she had not used the ES1 form to notify the Respondent of the complaint but that she did notify the Respondent of her complaint, and she did set out the substance of that complaint.  She advised that she made a subject access request at the same time and that there was back and forth correspondence with the Respondent re same.  In that context she was satisfied that the Respondent was on full notice of her concerns of discriminatory treatment.  The Complainant confirmed that she had difficulty accessing the form in a format that she could work with. 

I further noted that at hearing the Respondent advised that the ES1 form was available in Word format and that the Complainant had confirmed that her technology could translate to her from that format.  The Respondent also noted that the Complainant, while not using the form, could have followed the format and could have set out the relevant ingredients in her correspondence.  In addition, I noted the Respondent position that the notice period for such a complaint is clearly laid down in the act, that such issues were “very memory sensitive” and that, in the context of late notification the company was left without the evidence to verify its position.

In considering this matter I accept the challenges faced by the Complainant in accessing information provided in various formats and I acknowledge that she had difficulty initially accessing the ES1 form in a format that was accessible to her.  I consider it reasonable, in these circumstances for a complainant to submit notice of their complaint by separate correspondence.  However, it is essential, that in doing so, a Complainant provides the Respondent with all the necessary information that would have been provided on the ES1 form and that such information be provided in accordance with the timelines required by the Act.

I noted that the following components are required to be submitted on an ES1 form:

1.      Name & Address of Complainant & Respondent

2.      Categorisation of the treatment complained of e.g. discrimination, harassment, failure to provide “reasonable accommodation” etc

3.      Confirmation of Ground under which complaint is made

4.      Details of the events giving rise to the complaint

5.      Description of less favourable treatment

6.      Request to Respondent for Information

7.      Notice of Intention to seek redress under the ESA 2000-2015 if response not received within 1 month

I also noted Section 21 of the ESA 2000 which provides, at paragraph (2) “Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of— (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,”

Having reviewed the relevant documentation provided by the parties I noted that the Complainant first notified the Respondent Customer Services by email on 5 October 2023 in relation to her allegations regarding 4 October 2023.  That email confirmed the subject to be discrimination and advised that she was blind and a guide dog user.  Furthermore, it described the incident that was alleged to have occurred.  Nonetheless, there is nothing in that email to suggest that the Complainant had any intention of pursuing a complaint under the ESA in relation to the matter, nor does the email specify what less favourable treatment the Complainant is suggesting occurred.  Subsequent, correspondence between the Complainant and Customer service at the Respondent focus on the “manner” in which the Customer Service representative would be “passing on [her] feedback” to the OCS team and the procedures for addressing complaints between the two companies.

I noted that on 24 October the Complainant, in the absence of answers to her queries, made a subject access request seeking clarification in relation to actions regarding her complaint and that later that same day she sent a further email outlining an incident alleged to have occurred on 23 October.  In that email the Complainant set out in very clear terms, the alleged events of that day, and very clearly alleged indirect discrimination against her 4-year-old child who was accompanying her on the day in question. There were two further emails in late October/November in relation to subject access requests but it was only on 22 January 2024 that the Complainant advised the Respondent that as she had not received any response to her subject access request, she would lodge a complaint with the Data Protection Commissioner if she did not receive a response by 5 pm on 29 January 2024.

I noted that on 29 January the Respondent emailed the Complainant to clarify if she had sent her request to the correct address and after an exchange of emails it transpired that the Respondent had given the Complainant the wrong email address.  Ultimately, on 31 January the Respondent emailed the Complainant seeking verification of her identity and detailed description of the incident.  The correspondence also advised that cctv footage is destroyed after one month.  While the parties provided a considerable number of further emails, none of those provided demonstrate that the Complainant put the Respondent on notice of her intention to pursue the matter under the ESA.

In all of the circumstances, I find that the Complainant’s submission of email correspondence to the Respondent in relation to the alleged incidents of 4 and 23 October 2023 does not meet the notice requirements set out in the act to notify the Respondent of “(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.”   In all the circumstances I must find that I do not have statutory jurisdiction in this matter.

CA-00066467-001

Incorrect Respondent (Preliminary Issue)

In relation to the complaint that the Complainant suffered discriminatory treatment at the Respondent’s stores at Adamstown on 3 June 2024,  at Spencer Dock on 16 July 2024 and at Parnell Street on 16 July 2024 the Respondent submitted that  each accusation of discriminatory treatment made by the Complainant was alleged against employees of OCS Group Ireland Ltd, who provide security service under contract to the Respondent.  It was the Respondent submission that in the first instance OCS Group was the correct respondent in these matters regarding allegations of discrimination against their employees.

I noted that the Respondent placed particular emphasis, both in their submission and at hearing, on Section 42(2) of the Act which provides that “(2) 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”.  I noted further the Respondent position that OCS staff were not acting “with the authority” of the Respondent if they excluded the Complainant from the Respondent stores with her guide dog.  In this regard the Respondent drew attention to its policy in relation to assistance dogs and the requirement on the contractor and its employees to act in accordance with its policies.

In addition, I noted the Respondent position that the OCS staff member at Adamstown was not contracted to them but was working for the shopping centre within which their store resided.  In circumstances where that person was not an agent of the Respondent, the Respondent position was that it was not in any way vicariously liable for his actions.

I noted the Complainant position that she was a lay litigant and was not equipped to argue case law.  She was of the view that the Respondent was responsible for the actions of the security staff on its premises.

In considering this matter I was struck by the evidence of the various respondent witnesses at hearing, where they could not describe any system in place in the Respondent stores for monitoring the compliance of OCS with the requirements of the policy or the contract.  While it may not be accepted by the Respondent that discrimination occurred, it is common case that the 3 incidents described by the Complainant did occur.  In all 3 cases the matter was only resolved by the intervention of an employee of the Respondent.  Evidence was given that in some instances the store manager brought the incident to the attention of OCS.  In response to questions put by me to the various witnesses, none were in a position to advise how those matters were escalated within the Respondent and how the OCS performance was monitored.

It is settled law in the context of the Employment Equality Act, that for an employer to mount a defence against vicarious liability for the actions of their employees/agents it is not enough for that employer to simply have a policy in place in relation to complaincen with the Act.  The employer is obliged to have policies in place to set out the standards of behaviour required of an employee/agent, to familiarise employees with the relevant policies and to have remedies available within the policy to address deviant behaviour.  In addition, the employer must be seen to act in accordance with that policy and address complaints accordingly. Where such an employer brings in agency or contracted workers, they may well pass on those obligations to the relevant contractor, but they must still have measures in place to ensure compliance with their policies.  Such measures would ordinarily take the form of random checks for compliance, reporting systems for instances of non-compliance and provision under the contract for dealing with such instances of non-compliance.

It seems to me that the same measures are necessary and required in relation to compliance with the provisions of the Equal Status Act before a Respondent can defend its vicarious liability for the actions of its employees/agents. 

In the instant case the Respondent did have a clear policy in place and had clearly made considerable effort to familiarise its’ own staff with the terms of the policy.  In relation to contracted staff the Respondent had placed obligation onto OCS to ensure that their staff acted in accordance with policy.  However, it was abundantly clear to me that the Respondent did not have measures in place to monitor the performance of OCS staff to ensure that they acted in accordance with policy. It was also clear that there was no recognised mechanism in place for escalating issues arising from non-compliance with the policy or for addressing such instances.  The correspondence provided by the Complainant clearly showed that she could not get clear answers, over a protracted period, in relation to the procedures for addressing complaints with OCS, nor could she get any answers as to what, if anything had been done to address her earlier complaints. I view this as a flaw fatal to the Respondent view that it is not vicariously liable.

In relation to the security person at Adamstown, I noted the evidence of Mr. Shakeel where he confirmed that the security officer had followed the Complainant from the shopping centre into the Respondent store.  I also noted his evidence that the security officer from the centre covered the breaks for the security officer in the store and vice versa and that this was a regular practice, though not an officially approved or contracted service.

There is an old saying that “what you permit, you promote” and I am of the view that this is relevant in these circumstances.  The practice of cover being provided by the centre security officer appears to have been ongoing and accepted by the Respondent management at the store and in those circumstances the Respondent cannot simply now resile from that position.

Having considered all of the above I find that the Respondent is vicariously liable for the actions of the OCS staff involved in all 3 incidents alleged by the Complainant.

Prima Facie Case

The Complainant claimed that she was discriminated against by the Respondent on the grounds of her disability in relation to the provision of goods/services,  by the Respondent failing to give her “reasonable accommodation” for a disability.

Section 38A of the Act deals with the Burden of Proof and states as follows:

“38A.— (1) 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.”

In evaluating the evidence before me, I must first consider the following:

(i)                  if the complaint is properly before me and

(ii)                if the Complainant has established a prima facie case pursuant to Section 38A of the Acts. 

In relation to (i) above I find that this complaint is properly before the WRC and was submitted within the requisite time-limits prescribed by Section 21 of the Acts, including those for giving notice of a complaint to the Respondent by means of submission of the ES1 form and referring the complaint to the WRC.

In relation to (ii) above there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (e.g. race, disability).

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable that the treatment someone, not covered by the same ground(s), would have received in similar circumstances.

A prima facie case is established only when all three criteria are satisfied and only then the burden of proof shifts to the Respondent to rebut the claim of discrimination. 

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

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”.

In grounding her complaint, the Complainant relied on the following

(i)                  that the Complainant is visually impaired and uses a guide dog. 

(ii)                that the Complainant alleged that she was prevented from conducting her normal business on 3 occasions at the Respondent stores by being prevented from entering the stores or by the questioning of her right to enter the stores by security officers because she was accompanied by her guide dog

(iii)              That the Respondent did not make reasonable accommodation for her disability in not allowing her to enter the stores or questioning her right to enter the stores accompanied by her guide dog.

It is common case that the Complainant is visually impaired and uses a guide dog and so I accept that she has demonstrated membership of the discriminatory ground.

The Complainant provided submissions, together with oral evidence and footage on her phone, showing her being stopped by security personnel contracted by the Respondent.  The evidence shows that on all 3 occasions she was initially stopped from entering the store.  The evidence of the relevant Respondent witness from each store confirmed that these events occurred.

The evidence also shows that on each occasion she was accompanied by her guide dog who was wearing a harness which would have identified him as a guide dog.

Based on the above and having considered the totality of the evidence in this matter I find that the Complainant has established a prima facia case of discrimination on the ground of disability.

The Substantive Case

The Complainant is registered as blind. The Complainant has a guide dog named Pilot who provides safety and security to her in navigating her day-to-day activities.  She gave evidence that when she is out and about with Pilot it is absolutely evident, even at a distance that he is a guide dog. The Complainant demonstrated the equipment/identification tools used to demonstrate that Pilot is a guide dog and showed the hearing his reflective harness and vest together with the rigid handle frame. She confirmed that he has a flash notice together with a medallion identifying him as a guide dog.

I noted the evidence given by Ms. Collins confirming the Respondent policy that if a dog is an obvious assistance dog the person and their dog should be permitted to enter the store and that if it was not obvious, they should be asked for ID. 

I noted the evidence of Mr. Shakeel in relation to the Adamstown incident where he stated that he had observed, from where he was in aisle 11, that the security officer had followed the Complainant and her dog from the centre into the store stating that no dogs were allowed.  I also considered it relevant that Mr. Shakeel stated in his evidence that he recognised “straight away” that the Complainant was accompanied by a guide dog and that under cross examination he again confirmed that he was “immediately aware” that the dog was a guide dog and that later in his evidence he stated that “the minute I saw the dog I knew it was a guide dog.”  Under cross examination Mr. Shakeel also advised the hearing that the security officer should not have stopped the Complainant and that he noticed straight away that she was accompanied by a guide dog.

I noted the evidence of Mr. Jundulus in relation to the incident at the Spencer Dock store where he confirmed that the security officer stopped the Complainant and her dog from entering the store.  He stated that the Complainant would not engage with the security officer but instead looked for a manager.  He confirmed that the Complainant told him what had happened and asked him if the security guard was trained.  He confirmed that he advised her he did not know.  He stated that when they reviewed the footage it was clear to be seen that the dog was a guide dog, that it could be obviously identified and that the security officer confirmed that he saw the signage on the dog.  He confirmed that the security officer had stopped her first and only then asked.  He stated that the security officer should have known and that he apologised to the Complainant.

Under cross examination, Mr. Jundulus confirmed that the security officer had advised the Complainant upon entering the store that no dogs were allowed.

I also noted the evidence of Ms. Power, in relation to the incident in the Parnell Street store where she confirmed that she recognised the dog as a guide dog “immediately”.  She stated that he was wearing a harness and lead and that it was very clear.  She also confirmed that her colleagues (Aoife and Leo) both recognised the dog as a guide dog.  She confirmed that she did not ask the Complainant for ID as she didn’t need to because she could clearly see it was a guide dog.

Taking all of the above evidence into account, I am satisfied that even the most cursory of glances would immediately identify Pilot as a guide dog and even at some distance this remained the case.

I noted the Respondent position that once its own employees became involved in the incidents, they immediately identified the dog as a guide dog, and immediately confirmed the Complainant was welcome to go about her business.  Based on the evidence of the Respondent witness it is clear that this was the case. 

The Complainant also fully acknowledged the role played by the Respondent staff and their kindness and support in addressing matters and it is important for me to acknowledge that these staff were exemplary in their dealings with the Complainant.  The Respondent must also be acknowledged for the extent to which the staff were keenly aware of the policy in relation to assistance dogs and for the commitments set out in that policy and in their equality and diversity policy.

The Respondent presented evidence that the Complainant was ultimately advised that she could go about her business, that she was offered assistance with her shopping and was offered goods free of charge in recognition of what had occurred.  I noted that on each occasion the Complainant had declined the offers, describing her embarrassment, the appearance created that she had done something wrong and the distress caused to her young son.

On balance I am satisfied that the Complainant was initially prevented from entering all 3 stores of the Respondent, not to check if she had an assistance dog but to be told she could not enter with a dog.  I am also satisfied that the Complainant was publicly confronted in the manner in which this was done and that it should have been immediately evident to the security staff involved that she was a blind person using the assistance of a guide dog. 

I noted the decision in the case of Sophia Brennan v KOA (ADJ-00038210) relating to the refusal by a restaurant to allow the complainant’s guide dog onto the premises. In that case the Adjudication Officer in finding for the complainant stated:

“The dog should simply be accommodated on arrival... There is no suggestion that the Complainant was asked to wait or come back so as to allow the Restaurant to re-configure tables or already seated parties so as to accommodate the Complainant. The Complainant was treated as “other”, her dog was insulted, and she was sent away.”

In the instant case the Complainant and her dog were not accommodated upon arrival, nor was she asked for identification.  She was simply refused entry, and she described the impact of these events as making her to feel “other”.  At hearing the Complainant presented as an independent individual who simply wished to go about her normal day-to-day business as others without her disability do each day without disruption.  She described very well the impact on her and on her young son arising from the actions of the security staff involved and, in those circumstances, it is understandable that she no longer wished to avail of goods and services in the stores despite the efforts of the Respondent employees.

In all the circumstances I find that the Complainant was discriminated against by the Respondent in not providing her with reasonable accommodation and that her complaint was well founded.

Redress

The Complainant sought the following:

·       Compensation for the discrimination to be awarded that is effective, proportionate and dissuasive

·       A recommendation that the Respondent’s staff/subcontractors are trained repeatedly in relation to the provisions of the ESA and the duties of service providers arising therefrom

·       An order that the Respondent demonstrate its continued commitment and compliance with the ESA by displaying “Guide Dogs & Assistance Dogs Welcome” signage at their entrance.

I have considered carefully the totality of the evidence in this case in reaching a conclusion regarding redress in the case.  I am conscious of the upset and embarrassment of the Complainant arising from these matters and I am also conscious of the exemplary behaviour of the Respondent’s own staff.  In these circumstances I believe that an appropriate award that is proportionate, effective and dissuasive is the amount of €6000.

I will set out my response to the remaining matters under the heading “Decision” below.

CA-00062131-001

I found that I do not have statutory jurisdiction in this matter, and I decide accordingly.

CA-00066467-001

I found that the Complainant was discriminated against by the Respondent in not providing her with reasonable accommodation and that her complaint was well founded and I decide accordingly.

I direct the Respondent to pay the Complainant the amount of €6000 as compensation for the discrimination.  I also direct the Respondent as follows:

·       To put in place measures to ensure that staff of any subcontractor are trained in relation to their obligations regarding compliance with the provisions of the Equal Status Act

·       To put in place mechanisms to measure their compliance with those provisions

·       To set out clearly in relation to sub-contractors, its procedures for addressing issues of non-compliance with their policies

·       To display “Guide Dogs & Assistance Dogs Welcome” signage at the entrance to all their stores.

Discrimination on the ground of disability