Complainant

Respondent

Parties

Ms Luminita Covaci

Corajio Unlimited Company          T/A Mr Price

Representatives

Ms Aoife Doonan BL instructed by Ms Aine Breathnach Solicitor Irish Human Rights & Equality Commission on day 1&2 instructed by Ms Claire Tadla Solicitor IHREC on day 3 

Mr Patrick O’Brien BL instructed by Ms Thelma McMahon Legal Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063224-001

01/05/2024

This matter came before the WRC dated 01/05/2024 as a complaint submitted under section 21 Equal Status Act, 2000. 

The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place initially on 07/03/2025. 

The specific complaint is one of discrimination against by a person, organisation/company who provides goods, services or facilities alleged to have taken place on 06/11/2023 by reason of gender; disability; race; and a claim that the Respondent has treated the Complainant unlawfully by discriminating against her in harassing her as set out in the Complainant’s WRC complaint form.  The Complainant claims the Respondent treated her unlawfully by discriminating against her in the provision of goods/services.  

The incident is denied as ever taking place by the Respondent and the claims are rejected in their entirety.    

The Complainants issued two sets of proceedings based on the same set of facts against two respondents, namely a retail store and a security company.  On the first day of hearing I invited the parties to file legal submissions, within specified timelines, having express regard to the identity of the correct respondent in the within case.     

Following receipt and review of the legal submissions on the matter of the correct respondent I issued a preliminary ruling as follows: 

I write further to the hearing scheduled to take place on 07/03/2025 prior to the commencement of which the following issues were raised as preliminary issues:

1.      The correct identity of the Respondent;

2.      The law of vicarious liability;

3.      ES1 form and statutory requirements for WRC complaints (security company did not receive an ES1 form).   

The parties were afforded the opportunity to provide supplemental written submissions on the preliminary matters.  I acknowledge receipt of same for which I am grateful.  Having carefully reviewed said supplemental submissions I now make a ruling on the matter of the correct identity of the respondent as follows. 

I note the Complainants have filed a complaint against a retail store and they have also filed aseparate identical complaint based on the same set of facts against a security company in parallel proceedings at the Workplace Relations Commission (WRC).    

It is not disputed the retail store is a provider of goods and services to the public.  It is not in dispute the security guard involved in the alleged incident on or about 6 November 2023 was not an employee of the retail store at the material time. 

Section 42 of the Equal Status Act 2000 (the “ESA”) expressly provides as follows:

 42.—(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 matter of liability for the actions of a security guard not employed by the named respondent has been addressed in Axinte v Q-Bar Dublin DEC-S2005-094.  The security guard involved in this incident was employed by a security company contracted to provide security services for the respondent’s bar.  The equality officer relied on section 42 (2) of the Equal Status Act 2000 and concluded that the refusal by a security guard to admit and provide service to the complainant rendered the respondent vicariously liable for the refusal of service.  She found on the facts of that case that Mr. Axinte had been discriminated against contrary to the Equal Status Act 2000 on the ground of race by the refusal of service on 27th May 2002.

The liability of a security firm is addressed by Judy Walsh as follows:

“For example, a retailer might have contracted with a firm to provide security staff for its premises. In such a case the security staff would be agents of the retailer”, Walsh, Judy (2012), Equal Status Acts 2000-2011, Discrimination in the Provision of Goods and Services, page 265.

I do not find it necessary to cite all the numerous authorities that address the law in relation to vicarious liability in circumstances where it has been held that the acts of security personnel acting under agency rather than under a contract of employment with the retail store or the cinema or the bar to name but a few examples come within the parameters of section 4(2) of the ESA  as I believe it is captured succinctly in Axinte v Q-Bar set out above.

I am satisfied the security guard on the facts was an agent of the respondent and therefore the retail store is vicariously liable for the act of the security guard. 

I am satisfied the security guard falls within the parameters of section 4(2) of the ESA.

I find the correct respondent in these matters is the retail store namely Corajio Unlimited Company T/A Mr Price.

Further to the hearing on 24/07/2025 the Complainants sought to enter a phone bill into evidence to which the Respondent rejected.  I issued the following ruling on the matter:

“I acknowledge receipt of the supplemental submissions of the parties in the matter of the Complainant’s request for leave to submit Vodafone records and the Respondent’s objection to same.

May I respectfully refer the parties to the relevant law as set out in The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”).

It used to be the case that admitting business records in evidence in litigation was that those business records had to be proven by a witness.  In effect, what has been created by the 2020 Act is a statutory exception to the hearsay rule which creates a presumption that information contained in “business records” are proof of fact without the relevant individual being required to give evidence or be cross-examined. 

The 2020 Act introduces a presumption that business records will be admissible in civil proceedings as evidence of the truth of facts or facts asserted in such records, including records originating outside Ireland, where:

• direct oral evidence would be admissible in relation to the fact in the record
• the information was compiled in the ordinary course of a business
• the information was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with (irrespective of whether the person compiled the information is identifiable)
• if the information is a reproduction of non-legible information in a legible form, and that reproduction occurred in the course of the normal operation of the reproduction system concerned.

The presumption may be challenged / rebutted, but the burden shifts to the challenging party to establish that the evidence contained in those records is untrue or incorrect. 

The 2020 Act sets out as follows:

Admissibility of business records: general

14. (1) Subject to this Chapter, information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information—

(a) was compiled in the ordinary course of a business,

(b) was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and

(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

(2) Subsection (1) shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he or she is identifiable) through whom it was supplied received it in the ordinary course of a business.

For completeness, I refer the parties to Chapter 3 of the 2020 Act and to the relevant provisions therein.

Please be advised these matters will be relisted for another day of hearing in due course. 

In the meantime, I would be grateful if the relevant Vodafone account records could be submitted by the Complainant to the WRC at which time they will then be copied to the Respondent.

Please ensure the document is redacted as appropriate prior to submission.   

The aforesaid redacted phone bill was submitted to the WRC and copied to the Respondent. 

CA-00063224-001

Overview of Complainant written submission

On 6 November 2023, Ms Maria Covaci and Ms Luminita Covaci attended the Mr Price store on Airton Road, Tallaght, Dublin 24, with the intention to buy Christmas decorations for Ms Luminita’s children. As they approached Mr Price, they were refused entry by a security guard. Both were wearing the Roma traditional long skirt. Ms Luminita Covaci spoke with the security guard. Ms Covaci asked the security guard why she was being refused entry and were told they weren’t allowed in. Ms Luminita Covaci explained that she was blind and that she needed the assistance of her mother to shop and again they were refused. Ms Covaci asked if her mother could go in without her to pick up some items and again she was told that her mother could not enter the shop. After a few minutes a second member of staff approached them and repeated that they were not allowed in without providing any reason for the refusal.

Ms Luminita Covaci and her mother, Ms Maria Covaci, were very embarrassed by the incident as they had both been in the shop before and no issue had arisen. A number of individuals passed by and saw them both being refused a service. A number of other individuals, who did not appear to be members of the Roma community or blind, were permitted to enter the store and carry out their shopping during this time. On the day of the incident in question, Ms Luminita Covaci contacted her support worker to let her know what happened and to inform her of her distress following the incident.

On 6 November 2023, Ms Luminita Covaci and Ms Maria Covaci were denied entry into the Respondent store while others were allowed to enter the store without issue. It follows that both women incurred less favourable treatment in comparison to people who sought entry to the store who were not visibly disabled or blind and did not require reasonable accommodation. Ms Luminita Covaci informed the security guard that she was blind and that she required reasonable accommodation in the form of assistance from her mother to access the store. Neither Ms Luminita Covaci nor Ms Maria Covaci were given a reason as to why they were not allowed to enter the store despite asking repeatedly for same, both understood to believe that they were discriminated against because of Ms Luminita Covaci’s disability and both were very upset and embarrassed because of this.

INTERSECTIONAL DISCRIMINATION

The WRC is tasked with considering intersectional discrimination in cases where a complainant has been treated less favourably than another person due to a combination of circumstances. In Lindberg v Press Photographers Association of Ireland DEC-S2011-04, the Equality Tribunal found that the complainant, a non national woman, was discriminated against on the grounds of both race and gender. Intersectional discrimination particularly impacts Roma women who wear traditional Roma attire as part of their ethnic identity. In light of the above and taking into account s.38A of the Equal Status Acts and the burden of proof described in Smith, it is submitted that Ms Luminita Covaci and Ms Maria Covaci have sufficient facts to establish a prima facie case of discrimination on the grounds of race and ethnicity and disability and/ or gender respectively. Accordingly, it is submitted that Ms Luminita Covaci and Ms Maria Covaci as members of the Roma Community, are a protected group and faced less favourable treatment, in refusal of service and entry into the store, than customers who were not members of the Roma Community. It is further submitted that the treatment can be clearly inferred to be based on discriminatory grounds of race and ethnicity and/or gender. It is further submitted that Ms Luminita Covaci and Ms Maria Covaci were discriminated against because of Ms Luminita Covaci’s disability, as a blind person, and faced less favourable treatment, in refusal of service and entry into the store, than customers who were not visibly disabled or blind and did not require reasonable accommodation. It is further submitted that the treatment can be clearly inferred to be based on discriminatory ground of disability.

Furthermore, Ms Luminita Covaci and Ms Maria Covaci experienced harassment through verbal intimidation, being refused service and entry into the store. The Respondent failed to take reasonable steps to prevent such harassment.

INFERENCES TO BE DRAWN

Section 26 of the Equal Status Acts allows inferences to be drawn from the failure of a Respondent to provide ‘material information’ sought via section 21(2)(b) of the Equal Status Acts. ‘Material information’ includes reasons for any act or omission, relevant practices or procedures and information about comparators and would include the CCTV footage and rotas for the day in question. The respective ES1 forms duly sent to the Respondent on 5 January 2024 requested the Respondent to provide CCTV footage of the entrance of the Respondent’s store on 6 November 2023 and to provide a copy staff rota for 6 November 2023 indicating the identities of staff working on the 6 November 2023. The Respondent has not provided this material information to date. The CCTV footage and Staff Rotas are relevant and vital pieces of evidence that are in the exclusive knowledge of the Respondent. It is submitted that it can therefore reasonably be inferred that the non-release of the material information shifts the burden of proof to the Respondent as it had the means or knowledge to dislodge or not, the inference of discrimination.

Law relied upon by the Complainant and cases cited. 

Section 3(1) of the Equal Status Acts 2000, as amended; Section 3(2)(g); Section 3(2)(h); Section 5(1); Section 11(1); Section 11(5)(a); Section 38A(1); Smith v The Office of the Ombudsman [2020] IEHC 51; Oskar Hangurbadzo v Ladbroke (Ireland) Limited, ADJ-00030248; A Member of the Roma Community v Supermarket ADJ-00050944; Megan McDonnell v Iceland Stores Ireland Limited, ADJ 00032641; CT & FE v Dunnes Stores unlimited Company [2023] IECC 4; Donnelly v. The Minister for Social Protection [2022] IESC 31; Sofiya Kalinova v Permanent TSB Plc, ADJ-00026607; Autistic Child v Lidl Ireland GMBH, ADJ-00039847; A Shopper v A Supermarket, ADJ-00039600; Lindberg v Press Photographers Association of Ireland DEC-S2011-04; Mongan and Children v. Clare County Council DEC–S2018–030; Nadine Latimer v Dealz Limited ADJ-00032641; Kim Murphy v Ryans Investments Unlimited Company t/a Hertz Rent A Car ADJ-00054235; Bride v Hotel ADJ-00037223

Summary of direct evidence of Complainant Luminita on oath

The Complainant submits she was not allowed to go into Mr Price to buy stuff for the kids for Christmas.  The Complainant submits she hasn’t gone back there since that day 6 November 2023.  The Complainant submits she went with her mother to buy Christmas decorations for her kids and security wouldn’t let her in he said no you can’t enter the shop he said no.  The Complainant submits she asked the security guard if her mom could go in and he said no.  The Complainant submits she asked why they were not allowed in and another lady came along and said they were not allowed in.  The Complainant submits she thinks that lady came from the till and her mom said she came outside from the shop. 

The Complainant submits she was really upset and she tried to get help and she tried to call Galina who works with the Roma and if they ever have any problems they call Galina. 

The Complainant submits she told Galina she was at Mr Price and they wouldn’t let her in and Galina asked to talk to a manager but they didn’t want to talk to her and said no.  The Complainant submits it happened around 3 or 2.40 and that she called Galina as soon as it happened. 

The Complainant submits the interaction lasted 20 – 30 minutes.  The Complainant submits she was wearing the same as she is wearing at hearing as it is the Roma tradition to wear long skirts.  The Complainant is asked why she thinks she was refused and she responds her clothes probably and maybe she cannot see. 

The Complainant submits this never happened to her before and she grew up in Ireland.  The Complainant submits she hasn’t been back there and that her kids love the stuff there.  The Complainant submits she was embarrassed. 

The Complainant submits that Galina told her to complain and she spoke to her a good few times and Galina told her she would contact the solicitor for her. 

The Complainant submits they didn’t say they knew she was Roma but they knew she was blind because she was holding her Mams hand.

The Complainant submits she went to the National Council for the Blind and she studied there for two years and that she worked on a CE scheme for two years.  The Complainant submits she has four children and that she is still involved with the National Council for the Blind.

The Complainant confirms she has never been involved with the Gardai and she has never taken any legal action and that this is upsetting and embarrassing.

Summary of cross-examination of Complainant Luminita  

The Respondent representative explains to the Complainant that it is his duty to put his client’s position to her and to elicit her response.

The Complainant agrees that she had been in the shop a good few times before 6 November and always with someone and she confirms she never had any issue.  The Complainant maintains that she went to the door and she was immediately stopped.  The Complainant is asked who spoke to her and she submits it was a man and there was no answer when she asked why they weren’t allowed to go in.

It is put to the Complainant that Mr Tata the security guard will say in his evidence that this did not happen and he was there as he was based in Tallaght branch that day.  It is put to the Complainant that he will say he never had cause to stop anybody while he was there.  The Complainant is asked how she knew the lady came to which she responds that the lady came outside and she (the lady) was talking to her.  The Complainant submits Christmas was coming.  It is put to the Complainant that lady to whom she refers was the manager of the shop on duty on that day who will say there was no such incident and she will say this incident did not occur. 

It is put to the Complainant that if such an incident had occurred that all the staff would know about it.  It is put to the Complainant that the security company has procedures also and such an incident would have been recorded.  It is put to the Complainant that PD will tell her that if such an incident occurred all the staff would know about it. 

The Complainant is asked if she had spoken to or contacted the Respondent directly after the alleged incident to which she responds she had her solicitors for that and she spoke to her solicitor a few days after it happened; she doesn’t recall the day she met with them (solicitors). 

The Complainant submits she spoke to her solicitor on the phone and repeats she doesn’t remember the day she met with the solicitor. 

The Complainant is asked why did it take so long for her to make the complaint to which she replies she was waiting for them (the solicitor) to get back to her. 

Summary of direct evidence of Complainant Maria (on oath)

The Complainant submits she was kicked out of Mr Price and that is why she makes a complaint.  The Complainant submits she went there with her daughter to buy things and they got kicked out.  The Complainant doesn’t remember when it was.  The Complainant submits she shopped there before but not often; she went with her daughter to buy things.  The Complainant submits they tried to enter and a man kicked them out.  The man said he was security and he said to her no no no get out.  She said why and he said he was security. 

The Complainant is asked if she remembers any of his features to which she responds that if she saw him she would be able to say about the features.  The Complainant submits she doesn’t remember when she was kicked out and she asked her daughter to call Galina.  The Complainant submits the woman from the shop said three times to go.  The Complainant submits the woman was wearing the clothes from the store.

The Complainant submits she said to go and everybody was looking at them.  The Complainant submits there was a woman dressed like them who was allowed to enter.  The Complainant submits she doesn’t know what day it was and she doesn’t want to lie as she swore on the bible and she cannot remember what time of day it was either but the kids were in school. 

The Complainant submits her daughter told Galina they kicked them out and she submits she tried to tell the security guard her daughter was blind.  The Complainant submits she told the security guard why are you throwing us out.  The Complainant submits she was speaking to the security guard in Romanian.  The Complainant submits she told the security guard she would go in and her daughter could stay outside and he said no no no.  The Complainant submits she has never stolen anything and she is here for 30 years.  The Complainant submits she felt embarrassed lots of times and she told her neighbours what happened. 

The Complainant submits it was Galina who did the complaint and not her.  The Complainant submits Galina said nobody is allowed to kick you out without a motive.  The Complainant submits everybody knows they are gypsy with these clothes they wear.  The Complainant submits she has lived in Tallaght for 25 years; she has no trouble with the Gardai and she has not taken legal action before.  The Complainant submits it was very embarrassing what happened to her at the entrance to the shop.

Summary of cross-examination of Complainant Maria

The Complainant accepts she has been in the shop several times before and accepts there had never been an issue.

The Complainant confirms she was stopped from entering on 6 November.  The Complainant is asked if the security guard said go go and she agrees this is what he said.  The Complainant confirms that after some time she met with her solicitor.  When asked if she told them what happened the Complainant confirms she did.  The Complainant submits that she told her solicitor whether they threw them out or said go go is the same thing. 

It is put to the Complainant that the words ‘go go’ do not appear in the legal document and that the words she had used were that he kicked us out which would suggest they were actually in the shop to which the Complainant responds no no it was when we were at the door.  It is put to the Complainant that she had said in evidence that she remembered no features of the security guard to which she responds I said if I see him I might recognise him. 

It is put to the Complainant that the security guard is in the room to which she responds it’s not him – that’s not true its not him – that’s not him. 

It is put to the Complainant that the security guard will say this did not happen and he was there on the day to which she replies that is not true.  It is put to the Complainant that she had said in her evidence there were other Roma who entered the shop to which she replies there was just one.  It is put to the Complainant that Mr Price does not discriminate against Roma to which she replies they kicked us out me and my daughter and why did they kick us out.  It is put to the Complainant that it was not because of her gender or because she is Roma to which she replies she doesn’t know why.

The Complainant confirms her daughter spoke to Galina and she doesn’t remember when. 

The Complainant submits Galina said you couldn’t be kicked out without a motive and she reiterates again that the security guard at hearing is not the security guard who kicked them out and that she doesn’t recognise this man and she swore on the bible. 

Summary of direct evidence of Ms Galina Negru witness for the Complainant (on affirmation) hereafter GN

GN outlines that she worked as a Senior Advocacy and Integration Officer South Dublin County Partnership and part of her role was running the Roma project in Tallaght and also for other migrants.  The witness submits both mother and daughter were actively engaged in the projects that commenced in 2021.  The witness submits she met them both a few months after starting in the role.  The witness submits mother and daughter would come to her for assistance engaging in the integration projects.

The witness submits she would contact IHREC when she had queries in relation to advocacy.

The witness recalls the phone call when they rang her in 2023 very distressed because they weren’t allowed in the shop.  The witness submits Luminita (daughter) asked her for legal aid and where to go.  The witness submits she recalls Luminita was distressed.  The witness submits she asked to speak to a supervisor, but she did not get to chance to do so and she does not remember how long she was on the phone.  

The witness submits Luminita was upset on the phone and they called her to see if there was legal support available and she told them they would have to fill in the forms. 

The witness submits she thinks she rang IHREC the following day.

The witness submits mother and daughter were upset, humiliated and frustrated.  The witness submits she had a very positive experience in dealing with them both and she submits its not easy to engage with the Roma community but they were both very engaging.

Summary of cross-examination of GN

The witness confirms she wasn’t present on the day of the alleged incident and confirms that her knowledge of the incident comes from the Luminita.  It is put to the witness that she just had Luminita’s explanation with which she agrees and submits that she could also hear her mother.  The witness is asked if they had told her that other Roma had entered the shop to which she replies no.  The witness submits she asked Luminita to pass on the phone to somebody in the shop. 

It is put to the witness that there is no record at all of the incident to which she replies that it is her understanding that the ladies were not allowed past the door of the shop.  The witness is asked if she made any complaint on their behalf to which she replies no. 

Summary of Complainant closing submission

Relying on section 3 of the Act – discrimination of grounds of disability, race and gender.  Section 5 probits discrimination in the access to services.  Section 11 relates to harassment; harassment by the security guard. 

Reliance is placed on ADJ-00032641 citing the definition of prima facie case set out in Cork City Council v McCarthy EDA 21/2008 as follows:  It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

It is submitted the burden of proof has been established and now shifts to the Respondent.  Both Complainants gave evidence they visited the shop on 6 November wearing traditional Roma dress.  Luminita was receiving assistance and the security guard refused them entry. 

Luminita explained that she was blind and Maria was confused and trying to speak to the security guard in Romanian.

The security guard refused to say why and another female staff member refused them entry.  Luminita asked to speak to the manager and she was ignored.  Maria has dedicated her life to raising her family; had cancer and was quite unwell and is deeply affected by this incident.  GN gave evidence that she is a senior advocacy officer working with the Tallaght Roma Project.  Luminita phoned her and she was very distressed; she was crying; distressed and humiliated; evidence of that phone call has been adduced.  The primary facts have been established that discrimination occurred and the burden now shifts to the Respondent to prove it didn’t happen.  Maria gave evidence that she didn’t recognise the security guard as she remembered a skinnier man; it was 20 months ago and she was clear in her evidence.  Maira was undergoing cancer treatment and it was an interaction that only lasted a few minutes. 

It is submitted the context of the incident is very important; it occurred all in English which is very confusing for Maria.  She gave consistent evidence she knew Luminita was upset.  She realises she wasn’t being allowed in and she remembers the impact.  To suggest it should be a better recollection flies in the face of the Act which is a reformative piece of legislation.

There was no evidence adduced in relation to the CCTV footage.  For the Respondent to say this did not happen is not a tenable position; seeking to question the memory of these two vulnerable women.  There is a responsibility on the Respondent to ensure the CCTV is kept; they are aware of the relevant time periods and were unable at hearing to provide CCTV.  They failed to submit an ES2 form and request the AO to draw inferences from that.  It is a memory for the Complainants that has caused them huge distress.  Respondent evidence is vague and weak.  Security guard wasn’t sure where he was based – Blanchardstown or Tallaght; watch people; profile people and stop theft.  PD was not on the floor the day of the incident.  BH not employed by Respondent at the time.  Seemed to be no specific training relating to the Roma community and no evidence from anybody working on the shop floor.  No evidence from the female staff member who refused entry; only consistent evidence was the focus on theft.  Security guard confirmed in evidence he is trained to stop Roma people entering the store. 

It is submitted discrimination is everywhere and CT and FE v Dunnes Stores Unlimited Company [2023] IECC 44 is cited at para 7.2 referencing the reality of discrimination in relation to shops.  Facts as set by the Respondent indicate there was no training in relation to discrimination; no training in relation to Roma; hyper vigilance in relation to theft.  It is submitted that ingrained prejudice occurred.  The security guard did not remember but ingrained prejudice seeps through his evidence – the incident didn’t stand out to him.  The Complainant (Maria) is a person of integrity; battling cancer and in and out of hospital. Respondent suggestion that she is lying is an attack on these witnesses.  The AO is requested to look at this in the round; Luminita is not able to identify the security guard and she cannot corroborate as she is blind. 

Respectful submission is that the AO must take all the evidence into account. The cases exhibited by the Respondent are distinguishable (ADJ-00023569 / 40158).   The Complainant was never provided with the CCTV.    

It is submitted other people were allowed in who weren’t women, weren’t disabled and weren’t Roma.  These were visibly vulnerable women.  Respondent had a clear focus on shoplifting.  The remedy should be effective and a deterrent as set out in ADJ-00054235 Kim Murphy v Ryans Investments Unlimited Company T/A Hertz Rent A Car.   

It is submitted there should be a change in the policy requiring CCTV to be kept.

Overview of Respondent written submission

The alleged incident giving rise to the within complaint is alleged to have occurred at the Respondent’s Airton Road store in Tallaght, Dublin 24 on the 6th of November 2023.  The Respondent has no record of any such incident occurring at the store on the date in question.

Prior to receipt of the ES1 form on the 8th of January 2024, the Respondent was not notified of any such incident by the Complainants or any advisers or representatives on their behalf.

Both Complainants maintain that they have been discriminated against on grounds of race or ethnicity. The First Named Complainant claims she has been discriminated against on grounds of disability also. The Respondent denies that any such discrimination, as alleged, has occurred.  The Respondent is an equal opportunities employer. It employs people of various nationalities, from diverse backgrounds and people with disabilities. Within its workforce it promotes, diversity, equality and inclusion. By way of example, the Respondent launched an initiative last year whereby it offered apprenticeships to members of the travelling community in business and accounting. The initiative was lauded by the Irish Traveller Movement and the details of which were reposted by way of support on both the Pavee Point and Roma Centre Linkedin pages.

The Respondent is an unlimited company having its registered office at 1 Airton Road, Tallaght, Dublin 24. The Respondent trades as Mr. Price Branded Bargains.

The Respondent operates an incident / accident report policy and procedure for all incidents which occur within its stores and carparking areas. This procedure applies to all incidents / accidents from employee or customer accidents within the store and carparking areas to incidents where customers are asked to leave the store. Management ensures strict compliance with the policy and its procedures by members of the Respondent’s staff.

The Respondent understands that Markwatch has its own incident reporting procedure. Markwatch define an incident “is, but not limited to, anything involving a member of the public resulting in a disturbance or a grievance with the actions of its staff members”.

The security guard who was on duty at the Respondent’s store will be present to give evidence at the hearing of this complaint. He will be able to give evidence of the incident reporting procedure. The Respondent understands that the steps in the procedure are as follows:

1.      A record is noted in the Markwatch store diary of any incident.

2.      The Markwatch staff member working in the store contacts the Director of the company immediately. 

3.      The Director then contacts the client to inform them an incident has been reported, and request CCTV footage be shared so that it can be reviewed.

4.      Upon review, the Director / client then decides what steps are taken next.

If, following the review Markwatch deems its staff to be in the wrong, they contact they contact their client and check if contact details have been left at the store by the persons involved in the incident. If contact details have been provided at store level, the client of Markwatch will request if they can be shared with Markwatch. If they are shared, Markwatch will contact the person involved and discuss the incident.

Due to the late notice of the incident, which is the subject matter of this complaint, the Respondent understands that the security store diary is not available. The Respondent has been informed by Markwatch that a new store diary is delivered during the first week of January every year.

There was no incident reported in the store on the day in question so subsequently no investigation took place.

When an incident occurs, it is reported to the manager of the store (a member of the Respondent’s staff), and it is recorded on the internal Mpos system. This procedure ensures that the Respondent has a contemporaneous and accurate record of any incidents or accidents which occur in its stores. There is no such incident recorded as alleged by the Complainants in this case on the Respondent’s internal system.

The Respondent operates a strict CCTV retention period of 30 days.  As the Respondent was not notified of any alleged incident until the 8th of January 2024, the CCTV is no longer available to the parties or to the adjudicator to assist in the determination of this complaint. The Respondent is prejudiced as a result.

It is alleged by the Complainants that the incident occurred in the afternoon of the 6th of November 2023. It is alleged by the Complainants that it was a female member of the Respondent’s staff who reinforced the security guard’s decision not to allow them to enter the store.

The staff roster for the 6th of November 2023 is attached hereto at Exhibit 3.

As can be seen therefrom, in November 2023, there were 23 employees on the Respondent’s staff roster for the Airton Road store.

On the 6th of November 2023, there were 11 employees scheduled to work. Of those 11 employees, there were 4 male members of staff. They are readily identifiable from the roster. Those male staff members are not relevant to the within complaint. The security guard commenced work at 14.00. There was no security guard prior to that time.

There were 7 female members of staff scheduled to work on the 6th of November 2023. Of those 7, one namely [redacted] did not work as she reported that she was sick. Sales assistant [redacted], who is female, worked from 06.00 – 13.00 and therefore was not in the store when the alleged incident took place. Staff member P.D., who is female, was the stock controller while she was at work from 09.00 – 15.00 and therefore had no interaction with members of the public. Staff members [redacted] and [redacted] are both female and Ukrainian nationals who were on duty as sales assistants. On the day, their duties were primarily restocking shelves. English is not their primary language, and they did not have any interaction with the Complainants on the day. Staff member [redacted], who is female, worked as a sales assistant from 09.15-14.15 and did not have any interaction with the Complainants.

Assistant Manager [redacted] who is female, was on duty from 09.00-18.00. and no longer works for the Respondent. [redacted] has been asked about the alleged incident on the 6th of November 2023 and has denied that she was involved in any interaction with the Complainants at all. Further, she denies the allegation that the Complainants were not permitted to enter the store. [redacted] is an Indian national and is no longer employed by the Respondent. [redacted] has returned to India. Save [redacted], each of the above-mentioned female staff members to include former staff member assistant manager will be called to give evidence at the hearing of this complaint. For the avoidance of any doubt, each will deny any interaction with the Complainants.

The Complainants have cited several cases throughout their submission. The Respondent denies that any incident of discrimination took place on the date in question and has no records of any such discrimination. Consequently, the Respondent has been unable to engage with the case law cited in any meaningful way as it respectfully submits that the oral evidence will determine the issues in the case.

In conclusion, the Respondent respectfully submits that the complaint is not well founded and ought to be dismissed based on the preliminary objection or following the hearing of the evidence. It is respectfully submitted that the delay in making the complaint has significantly prejudiced the Respondent’s ability to fully meet the case made and the compensation sought should not be awarded.

Cases cited by the Respondent

Patrick Dooley v Lidl [ADJ-00040158]

Ranadave Mukherji v Marks and Spencer [ADJ-00023569]

Donnelly & Anor v Minister for Social Protection & Ors [2022] IESC 31

Summary of Respondent witness Mr PremsaiTata Security Guard(on affirmation) hereafter PT

The witness submits he worked 8 months for the security company and he was based in Blanchardstown and Tallaght. 

The witness outlines the training received using the acronym ASCONE which was outlined as Approach, Selection, Concealment, Observation, Non-Payment and Exit. 

The witness confirms he was on duty in the Tallaght store on 6 November and that he didn’t stop anyone from entering and he doesn’t remember the incident.  The witness submits if there had been an incident he would have submitted an incident report to his company – it would go in the diary and there would be a report made to the company.  The witness submits he didn’t stop anybody at the door and he doesn’t know what happened that day.  The witness submits he doesn’t know the ladies and that he worked in the Tallaght store from 2 to 9 that day. 

Summary of cross-examination of PT

The witness confirms he was in the shop on the day but this did not happen.  It is put to the witness that as its almost 2 years ago maybe it has slipped his mind which he does not accept and responds no that he would remember.  The witness submits that in his work he has never stopped anyone in Tallaght.  The witness submits that if he sees with his own eyes someone stealing then he will stop them and he makes reference to ASCONE and submits that he would have to see it with his own eyes and if they steal he has to stop them.

It is put to the witness that he was profiling on the day which is not accepted.  It is put to the witness that this was an incident that caused the Complainant so much pain but it doesn’t stick in his memory to which the witness responds he does not remember ever seeing these guys before. 

It is put to the witness that he made a quick decision on the day to which he replies he didn’t stop anyone.

It is put to the witness he didn’t report because it was an incident not worth reporting to which he replies no he didn’t stop anyone.

It is put to the witness that it unbelievable that he didn’t stop anybody to which he responds he did not stop anybody. 

It is put to the witness that when they attempted to enter the shop he refused which he does not accept.  The witness submits this did not happen in his time there he does not accept another staff member approached.  The witness submits again that he did not stop anyone in that store.  It is put to the witness that the training is focused on theft which he accepts.  It is put to the witness that maybe he doesn’t remember because they didn’t kick up a fuss.  The witness replies that he did not stop anyone.   

Summary of direct evidence of Respondent witness Ms Paula Durkin on oath (hereafter PD)

PD outlines she has worked in the store for in Tallaght for six and a half years and she now holds the position of stock controller. 

The witness submits the Tallaght store has a wide customer base and that any customer with difficulties they would help them out get trollies for them etc.

The witness submits a report would have been written up if somebody had been stopped from entering and it would have been recorded in the handover book.  The witness submits there were no incidents recorded on the date in question

Summary of cross-examination of PD

The witness confirms that she wasn’t on the floor that day she was in the stockroom.  It is put to the witness that she cannot give evidence as she wasn’t there and she agrees but submits if something had occurred it she would have read about it in the handover. 

The witness accepts when it is put to her that she didn’t witness anything first hand.  It is put to the witness that the policy referred to focused on theft prevention to which the witness responds we don’t refuse people at the entrance to the shop. 

Summary of direct evidence of Respondent witness Ms Bobby Hickey on affirmation (hereafter BH)

BH outlines her role in the Respondent as that of Equality, Diversity, Inclusion & People Officer and she works with a staff complement of 5 or 6.  The witness outlines she has been in her role since April 2024.

The witness submits she organises diversity and inclusion training incorporating awareness of colleagues and of customers.  The witness submits there is disability awareness training also provided.  The witness submits there wouldn’t be a massive amount of training on ethnic minorities.  The witness submits the Respondent is in a partnership relationship with the Traveller Community and there are strong links with Pavee Point and there is no specific training to do with Roma. 

Summary of cross-examination of BH

It is put to the Complainant that she wasn’t even working there when this happened and she cannot give direct evidence to which the Complainant agrees and she submits that all records are made available to her.

The witness accepts the training provided is geared towards colleagues but she submits it would include customers also.  It is put to the witness that there is a policy of profiling in the context of the theft prevention policy document as opened to the hearing to which she replies it would be wrong of her to comment on that as it is not her role. 

Summary of Respondent closing submission

It is submitted that at no point was GN accused of lying all that was requested was confirmation and this was provided.  The Complainants have not satisfied the burden as set out in section 38 of the Act.  The Complaints have to establish the following:

1.      they are covered by the grounds

2.      treatment has occurred

3.      the treatment is less favourable than that to another.

Cannot take issue with disability or that the Complainants are Roma.  There has been no evidence called in relation to gender; it does not arise in this case.  The evidence on race and disability is crucial.  From the outset it was the Respondent who took issue with the delay in making the complaint and that is why the CCTV was no longer available.  This delay has deprived both parties of the CCTV for 6 November.  The incident alleged to have occurred on 6 November 2023 for which they  did not receive notification until 8 January 2024.  The ES1 form was sent on 5 January just one day before the statutory time period would have elapsed.  The Respondent operates its policy on CCTV in accordance with the law; retention period is 30 days in line with the Data Protection Act and this would have been known to the Complainants’ legal advisors.

It is submitted the AO must look very closely at the delay and the effect this has had on the evidence in this case in proving what is alleged occurred. 

The Complainants had been in the store lots of times with no issue.  It is important that neither Complainant themselves contacted the Respondent to make a complaint despite the Head Office being next door to the shop where they were allegedly refused entry.  Yet they didn’t go there to make any complaint. 

It is a matter for the AO to determine on the conflict in the evidence and the inconsistencies between the two Complainants in their evidence as to precisely what occurred.  Luminita said they were stopped at the door and refused entry.   Maria said she entered the store but was kicked out.   There is the issue of the recollection of Maria of the security guard and this is an important issue that arose from Maria’s own evidence.  In direct evidence Maria told the hearing she would remember the security guard. 

When asked what happened Maria said the security guard kicked them out and she was speaking to him in Romanian.  When asked who was he she said that if she was to see him again she would know his features.  The Respondent representative submits he asked in cross-examination about this as the security guard on duty that day was in attendance at hearing and Maria no that’s not him he was skinnier.  This is very important. 

The security guard gave evidence he was on duty that day he was an independent contractor working for a security company for which he no longer works and he attended the hearing voluntarily.  The security guard gave evidence that he never stopped anybody at the door. He gave evidence that he didn’t remember the Complainants and nor did he recognise them.  He gave evidence of the policy in place; making a note in the diary and there was no incident recorded that day. 

PD gave evidence of the policy not to stop anybody from entering and of the policy that is followed if an incident occurs when a person is in the store.  PD was not on the shopfloor that day and she had not been informed of any incident.  The shop manager witness was available and attended the hearing on the first day and would have been available in January but she is not available to give evidence today. 

Luminita gave evidence that she was treated less favourably when she was refused maybe because she cannot see or because of her clothes.  She gave no evidence in relation to her gender.  There is insufficient evidence to establish a prima facie case.  Maria cannot comprehend why they were refused; doesn’t understand case she is making. 

It is submitted the narrative set out in the WRC complaint form prepared by legal advisors on the Complainants’ instructions in regard to Luminita who is blind sets out ‘I noticed that other people who did not appear to be members of the Roma community or blind were permitted to enter the store and carry out their shopping.’  It is submitted that paragraphs 6 & 14 of the Complainants’ written submission prepared by the Complainants’ legal advisors sets out the following extracts: ‘Ms Luminita Covaci and her mother, Ms Maria Covaci, were very embarrassed by the incident as they had both been in the shop before and no issue had arisen. A number of individuals passed by and saw them both being refused a service. A number of other individuals, who did not appear to be members of the Roma community or blind, were permitted to enter the store and carry out their shopping during this time.’

‘Both women were denied entry into Mr Price while customers who were not members of the Roma Community were allowed to enter the store without issue. It follows that both women incurred less favourable treatment in comparison to people who were not members of the Roma Community who sought entry to the store.’

It is submitted that at hearing when asked who entered Maria said that people in Roma clothing entered and in cross-examination she stated one person in Roma clothing entered.  The Respondent representative cites Donnelly & Anor v Minister for Social Protection & Ors [2022] IESC 31with reference to the totality of the evidence and submits that having regard to the totality of the Complainants’ own evidence they haven’t reached the threshold and they haven’t established a prima facie case. 

The Respondent witnesses gave evidence they weren’t told of any incident on the day.  The security guard came to the hearing of his own accord and he wasn’t recognised by Maria.  BH spoke of the various programmes run by Mr Price.  In her evidence Luminita said the interaction took between 20 and 30 minutes.  We are now being told it lasted 5 minutes.  It is Maria herself that gave evidence that she would remember the security guard and how can she not now recognise him?

The Complainant representative is trying to suggest that the 20-month delay excused the inability of Maria to recognise the security guard in circumstances where she (Maria) was clear she would recognise him.  On Maria’s evidence members of the Roma were allowed to enter and it is submitted how can the race ground can be a prima facie case.  It is submitted that the height of the evidence relates to disability – Luminita said maybe it was because she cannot see.  It is submitted this is insufficient to meet the threshold and cites the following extract from ADJ-00023569:      ‘There is no factual evidence other than the disputed accounts made by the complainant and denied by the manager.’

CA-00063224-001

The issue for determination in this complaint is whether the Respondent discriminated against the Complainants on the grounds of gender; race; and in relation to Complainant Luminita discrimination on the grounds of disability; the failure to provide reasonable accommodation; and harassment through verbal intimidation in respect of both Complainants.   

In conducting my investigation and in reaching my decision, I have carefully reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have reviewed and considered the caselaw to which I have been directed by the parties.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I have two versions of events before me that are entirely at odds in all respects.  This case is characterised by what can only be described as unequivocal polarisation in terms of the evidence adduced.  All matters of fact are in dispute.   

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

I am guided by the findings of the Labour Court in Rezmerita Limited v Katarzyna Uciechowska [DWT1018] where the Court held as follows:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case.  There was also an absence of any probative independent corroboration on either side.  The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.  In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

The Relevant Law

The Equal Status Act 2000-2015 (the “ESA”) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

I reference the definition of discrimination provided in section 3 of the ESA as follows:

Discrimination (general).

3.—(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,

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

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

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

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 Complainants have submitted their complaints as members of the Roma ethnic group and this status is not disputed.   

It is not in dispute that the Complainant Luminita has a disability within the meaning of Section 2 of the ESA.    I am satisfied the Respondent is providing a service within the meaning of the ESA.    

Section 5 of the ESA provides clear direction against prohibited conduct as follows:

 “5. – (1) 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.”

The Burden of Proof

Section 38A of the ESA sets out the burden of proof as follows:

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts 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.  Accordingly, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

The Labour Court in several determinations has repeatedly emphasised that the facts must be significant to give rise to such an inference of discrimination and in the case of Public Appointments Service and Mr Bernard Lester [EDA 2022] the Court detailed what this meant in the context of section 85A of the Employment Equality Act mirrored in the ESA:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on 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 prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, 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.”

In Melbury Developments Ltd v Valpeters[2010] ELR 64, the Labour Court provided a helpful explanation on the nature of the burden of proof as follows:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” [emphasis added]

It is well established that unsubstantiated beliefs or assertions that discrimination has occurred are not sufficient to establish a prima facie case.

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

In Margetts v Graham Anthony & Company Limited [EDA038], the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further clarified by the Labour Court.  The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added] 

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 38A held that to establish a prima facie case, the complainant is obliged to satisfy three elements of a test as follows:

1.          The complainant must establish that he or she is covered by the protected ground;

2.          Establish that the specific treatment has allegedly taken place;

3.          The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.                  

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…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 to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant

Section 3(1) of the ESA gives meaning to ‘discrimination' in general across a broad range of grounds and provides that discrimination shall be taken to occur “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)...” 

Section 3(2)(g) defines the discriminatory ground of ‘disability’ as arising in circumstances when as between any two persons “…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 of the ESA sets out the obligations on providers of a service to reasonably accommodate persons with a disability and provides as follows:

 “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. 

 (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. 

 (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. 

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.” 

The Relevant Facts

At the outset it is noted the Complainants claimed discrimination on grounds of race and disability (in the context of the Complainant Luminita); and harassment on the ES1 form dated 05 January 2024.   

It is noted that the claim is subsequently expanded upon by the inclusion of the gender ground which is selected on the WRC complaint form filed on 01 May 2024.

There was no advancement of a case on gender grounds during the course of hearing and clarification was sought in regard to this element of the complaint at close of hearing as there was no evidence heard in relation to gender.  The Complainants’ representative submits that as Roma women, given the attire they wear, they are more noticeable and more susceptible than Roma men who do not wear the same attire.   

To this end I note the Complainants’ written submission sets out that “Intersectional discrimination particularly impacts Roma women who wear traditional Roma attire as part of their ethnic identity.” 

It would appear that the Complainants do not seek to rely on a claim of gender discrimination simpliciter and instead seek to argue that it is the combination of gender and race that constitutes discrimination.   

The Complainants seek to persuade me that an interdependence of two grounds i.e., gender and race is a valid ground to support a complaint of discrimination and comes within the ambit of the ESA and enjoys the protection of the ESA.   

I note the case of Lindberg v Press Photographers Association of Ireland[DEC-S2011-04] on which the Complainants rely which I have reviewed in detail.  This is a case in which two grounds were relied on by the complainant: gender (being a woman) and race (being of a different nationality).  I fully 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 not provided for in the ESA.  I am satisfied that what Lindberg suggests is that discrimination on one ground can be compounded or augmented by discrimination on another ground.     

I am satisfied that intersectionality which relates to an individual experiencing discrimination on multiple grounds i.e., in the within case the grounds of race and gender, has no formal or binding legal status.  While I accept that overlapping and compounding forms of discrimination may occur and disadvantage may be experienced on the basis of two or more of the protected characteristics there is currently no provision in the ESA addressing intersectional discrimination.   

Accordingly, I am unable to find that intersectional discrimination is a valid ground to support a complaint of discrimination. 

The ESA does not provide for intersectional discrimination and I am unable to create a new ground not found in the legislation as set out hereunder. 

The ESA 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.” [emphasis added] 

The Complainants have presented no evidence to support their contention that they were discriminated against on the gender ground. 

In light of the foregoing, I am unable to find the Complainants have established a prima facie case of discrimination on grounds of gender. 

Turning now to the complaint of discrimination on grounds of race. 

I note in the Complainants submit in written submissions that on 6 November 2023 “as they approached Mr Price, they were refused entry by a security guard.”  I note the Complainants submit they were dressed in their traditional long Roma skirts on the day.  

I note the written submission asserts as follows: “A number of other individuals, who did not appear to be members of the Roma community or blind, were permitted to enter the store and carry out their shopping during this time.” 

It is noted there was a significant inconsistency between the Complainants’ written submissions and the oral evidence adduced at hearing in regard to aforesaid assertion.  In oral evidence the Complainant Maria averred there was a woman dressed like them who was allowed to enter.  This is affirmed by the Complainant Maria in cross-examination. 

Equality law is based on comparison – how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to support a claim of discrimination by pointing to how another person (the comparator), not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. 

The claim in relation to ‘other individuals who did not appear to be members of the Roma community’ having been permitted to enter the store whilst the Complainants were allegedly refused entry would have provided comparators leaving me in no doubt that the Complainants were treated less favourably on the grounds of their Roma ethnicity were it not for the evidence adduced by the Complainant Maria in direct evidence, and reaffirmed by her in cross-examination, that a woman dressed like the Complainants were allowed to enter at the time of the alleged incident.    

The Complainants have failed to adduce any significant evidence to support their claims that the alleged treatment was discriminatory on the ground of race but rather have essentially relied upon ‘speculations and assertions’ that I find I am unable to elevate to a factual basis from which an inference of discrimination could be drawn in regard to the incident which is alleged to have occurred.    

Turning now to the complaint of discrimination on grounds of disability. 

Disability

The Relevant Law

Section 4 of the ESA sets out the obligations on providers of a service to reasonably accommodate persons with a disability as set out above. 

It is not in dispute that the Complainant Luminita has a disability within the meaning of Section 2 of the ESA.    

The Relevant Facts

It is submitted that both Complainants incurred less favourable treatment in comparison to people who sought entry to the store who were not visibly disabled or blind and did not require reasonable accommodation.  It is submitted the Complainant Luminita informed the security guard that she was blind and she required reasonable accommodation in the form of assistance from her mother to access the store. 

I am satisfied these are facts of sufficient significance to give rise to a presumption of discrimination and the burden now passes to the Respondent to rebut in circumstances where the Respondent denies the incident alleged to have occurred on 6 November 2023 ever occurred. 

I find it necessary and timely at this juncture to address the significant and striking conflict in the evidence at front and centre of the within case that I am bound to take into account and in so doing I am guided by Rezmerita Limited and Dyflin Publications Limited. 

The Complainant representative in her closing submission respectfully submits that I must take all the evidence into account and I am requested by the Complainant representative to ‘look at this in the round.’  As part of this holistic assessment I am carefully considering the direct evidence as presented whilst taking into account all other relevant factors and surrounding circumstances.  In so doing I must also have regard to Melbury as set out above.      

Not only is there the overriding conflict in the evidence between the parties but there are inconsistencies in the evidence adduced by the Complainants that I am obliged to address as I seek to reconcile the versions of events as presented. 

I have a duty to evaluate the evidence of the Complainants and the Respondent witnesses as I seek to determine on a matter in which there is absolute polarisation of the parties.      

Both parties gave sworn evidence in support of their version of events and contested the opposing account. 

The Respondent denies that the alleged incident as submitted by the Complainants occurred. 

I note from the evidence adduced that there is no record whatsoever of any incident having occurred on 06 November 2023.  I note there is no incident report in existence either in the shop or with the security company in line with procedures.  I note the security guard at hearing confirms he was on duty in the Tallaght store that day and he did not stop anyone from entering.  I note the security guard submits if there had been an incident it would go in the diary and there would be a report made to his company.  I note the security guard during cross-examination maintains that he did not stop anyone from entering the store on the day.  I note the security guard was subject to a robust cross-examination and he remained unequivocal throughout. 

I note the Respondent witness PD submits a report would have been written up if somebody had been stopped from entering and it would have been recorded in the handover book.  The witness submits there were no incidents recorded on the date in question.  I find it questionable that such an incident as alleged would have been missed in circumstances where there were two discrete independent recording mechanisms available to contemporaneously record such incidents. 

The Complainant Maria avers she doesn’t remember when it was (that the incident took place) but she went there with her daughter and they got kicked out by a man who said he was security.  The Complainant Maria avers she told the security guard she would go in and her daughter could stay outside and he said no.  The Complainant Maria submits she had been in the shop several times before.  

It is noted the Complainant Maria cannot recall the date or the day or the time of the alleged incident apart from it was during school time.    

The Complainant Maria doesn’t remember ‘when she was kicked out’ and she asked her daughter to call Galina.  I note the Complainant Maria in direct evidence submits that it was Galina who ‘did the complaint and not her.’  

I note the witness Galina gave evidence that she did not make a complaint on their behalf.  

I note the Complainant Luminita in direct evidence submits that Galina told her she would contact the solicitor for her. 

I note in cross-examination the Complainant Maria maintains that after some time she met with her solicitor.   

I note the Complainant Maria in cross-examination maintains her daughter spoke to Galina but she does not remember when. 

I found the testimony of the Complainant Maria to be generally vague and inconsistent and this is even before I consider the Complainant Maria’s failure to recognise the security guard despite having testified that if she saw him again she would recognise him; this specific evidence was delivered by her with a certainty and a conviction which is noted as it is in stark contrast to her other evidence. 

I find it implausible that the Complainant Maria would have told the security guard she would go in and her daughter could stay outside in circumstances where she maintains she spoke to him in Romanian which he would not have understood in any event but also because I find it implausible that she would leave her daughter Luminita standing outside the shop by herself. 

I note the evidence adduced by the Complainants’ witness Galina who submits the Complainants phoned her on the day of the alleged incident.      

For the avoidance of doubt, while fully accepting the bona fides of this witness it should be noted this evidence is entirely hearsay because Galina was not present when the alleged interactions occurred.  Accordingly, it is not corroborative evidence in support of the claims made by the Complainants; it is evidence only that a phone call was made. 

The Complainant Luminita submits she spoke to Galina a ‘good few times’ and Galina said she would contact the solicitor for her.  I note Galina gave evidence of one phone call on the day of the alleged incident which she refers to as ‘in 2023’.     

What causes even more disquiet in terms of the phone call, even if I could rely on its probative value, is the fact that the Complainant Luminita submits in direct evidence she spoke to Galina “a good few times”.   

Accordingly, there is no way of knowing that the phone call identified on the redacted phone bill chronicles the phone call on the day of the alleged incident in circumstances where the Complainant Luminita submits she called Galina a ‘good few times’ and where Galina in evidence recalls a phone call “in 2023”.

This has caused me to question, while faced with the stark conflict and inconsistency in the evidence, whether or not the date provided for the alleged incident is the correct date. 

The Complainant Luminita submits that Galina told her to complain and that she (Galina) would contact the solicitor for her.  Galina at hearing in cross-examination when asked if she made a complaint on their behalf responds that she did not and accepted she had put them on to IHREC.    

Galina submits she thinks she phoned IHREC the following day.  Complainant Luminita submits she spoke to her solicitor on the phone; does not remember when that was nor does she remember the day she met with her solicitor. 

It is apparent the polarisation that exists between the parties in terms of the evidence adduced is significant not least among which is that the Complainant Maria did not recognise the security guard present at hearing who was on duty in the store on the date of the alleged incident. 

In direct evidence the Complainant Maria avers that she would remember the security guard’s features if she saw him when asked if she remembers any of his features.  In cross-examination when it is put to the Complainant Maria that the security guard is in the room she responds “it’s not him – that’s not true it’s not him – that’s not him.”

The extent of the conflict in the evidence in this respect is such that the parties were requested to address me on this matter in closing submissions.

To this end the Complainant representative submits in closing that the Complainant Maria gave evidence that she didn’t recognise him as she remembered a skinnier man; it was 20 months ago and she was clear in her evidence.  I am also asked to consider the context of the incident which the Complainants’ representative submits is important as it was all in English and confusing for the Complainant Maria.  It is further submitted the Complainant Maira was undergoing cancer treatment and it was an interaction that only lasted a few minutes. 

However, I note the assertion that the interaction only lasted a few minutes is completely at odds with the direct oral evidence of the Complainant Luminita who submitted the interaction with the security guard lasted between 20 and 30 minutes which gives rise to yet another layer of inconsistency in the evidence as presented. 

This direct evidence, adduced by the Complainant Luminita, of the duration of the incident completely undermines the assertion that it was an interaction that lasted only a few minutes which results in further unease regarding the reliability and credibility of the evidence underpinning the within complaints not least of which is the failure to recognise the security guard as set out above. 

I note it is put to the security guard in cross-examination that he doesn’t remember the incident because the Complainants did not ‘make a fuss’.  I am unable to accept this as clearly an interaction that lasted between 20 and 30 minutes and during which a phone call is alleged to have been made that lasted 4 minutes and 35 seconds would appear to constitute some type of an interaction that could be described as a fuss on any objective analysis.    

I note the Complainant representative in closing submits that the security guard confirmed in evidence that he is trained to stop Roma people from entering the store.  I am not satisfied there was any such confirmation in circumstances where I note in direct evidence both the Complainant Luminita and the Complainant Maria submit they had shopped in the store on many occasions in the past.      

The Respondent representative in closing submits the issue of the recollection of the Complainant Maria of the security guard is an important issue that arose from Maria’s own evidence.  The Respondent representative submits he asked in cross-examination about this as the security guard on duty that day was in attendance at hearing and the Complainant Maria said no that’s not him he was skinnier.

I note the Complainant Maria was seated across the table from the security guard for a prolonged period and he was in her line of sight for the duration of the hearing.  The fact remains the Complainant Maria failed to recognise the sole security guard who worked on the 06 November 2023 and who was in his attendance at the hearing.  

I note the Respondent’s closing remarks on the delay on the making of these complaints which has deprived the parties and the AO of the CCTV footage of the alleged incident in circumstances where the alleged incident occurred on 06 November 2023 and the ES1 was not completed until 05 January 2024 by which time the CCTV would have been overridden and that should have been known to the legal advisors. 

I note the inconsistencies in the evidence adduced as to when the Complainants made their complaint and to whom it was made; inconsistencies as to when a solicitor was briefed; and there appeared to be no clear recollection from either the Complainant Maria or the Complainant Luminita in regard to when any of these interactions might have taken place with their legal advisers all of which speaks to the unreliability and the sense of vagueness common throughout the evidence in an overall sense. 

I note the striking inconsistencies between the written submissions and the oral evidence adduced at hearing referred to above. 

This is a case in which the CCTV evidence would have been crucial.  Having considered the totality of the evidence adduced I can only find the evidence of the Complainants to be inconsistent and unreliable for the reasons set out above.  Having very carefully considered and evaluated the evidence adduced by the Complainants I find the inconsistencies undermine and erode the credibility to such a degree that, on balance, I am unable to find the facts as presented lead to a presumption of discrimination. 

For completeness I fully accept the Complainant representative’s assertion in her closing submission that the ESA is a reformative piece of legislation.  However, I am statutorily bound to apply the law to the facts as presented. 

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence.”

I cannot find that the evidence was credible as required by Melbury.   The consequence of the inconsistencies in the evidence throughout is that credibility is undermined to a significant degree.      

Having carefully considered all the evidence, I conclude that the Complainants have failed to establish a prima facie case of discrimination on grounds of race and gender and the presumption raised on grounds of disability has been rebutted in the circumstances outlined above.   

On this basis, I find these complaints to be not well-founded and accordingly, they fail. 

Inferences

For completeness I address the inferences argument put forward by the Complainants’ representative hereunder. 

Section 27 of the ESA allows me to “… draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

However, in the circumstances as outlined above where the CCTV was no longer available I am unable to infer as argued by the Complainant representative that the failure to provide the CCTV footage / the non-release of material information shifts the burden of proof to the Respondent. 

I have considered the totality of the evidence in regard to the delay in filing the ES1, a delay which has seriously impeded this investigation due to the fact CCTV was no longer available.  It is commonly understood that CCTV is kept for around one month aligning with GDPR best practice.  I am unable to draw inferences from the alleged failure to provide that which I accept was no longer available. 

Complaint of Harassment

The Relevant Law

Section 11(5) of the ESA 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”.

The Relevant Facts

In circumstances where I am unable to find a prima facie case has been established and having considered all of the evidence before me, I find that the Complainants have failed to establish primary facts from which harassment may be inferred under the ESA. 

CA-00063224-001

For the reasons set out above I decide this complaint is not well-founded.