Complainant

Respondent

Parties

Claudia  Tanase

Boots Retail (Ireland) Limited

Representatives

Sinead Lucey FLAC

Kate Conneely, BL, instructed by Ursula Cullen, Miley & Miley solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00070466-001

01/04/2025

This complaint concerns an incident at the Respondent’s Henry Street premises on 3 October 2024. The Complainant, who is of Roma ethnicity, alleges that a Security Guard prevented her from freely entering the premises when she set out that she  attended with her ill child to access the pharmacy to purchase medicine. The interaction was partly  recorded by the Complainant.

The Respondent denies discrimination, contending that any restriction was related to previous conduct rather than the Complainant’s ethnicity. It also disputes liability for the Security Guard’s actions and raises issues regarding the late disclosure of the video evidence.

Incident

The Complainant sets out that on 03 October 2024; the Complainant attended the Respondent’s Henry Street premises with her ill child to access the pharmacy to purchase medicine.

She alleges that a Security Guard refused her entry on the basis of her Roma ethnicity and was told by the Security Guard that he had been instructed not to admit members of the Roma community.

Following a heated exchange, part of which was recorded, she was permitted to access the pharmacy to purchase the medicine for her child and was later directed to leave the store. The incident occurred in public view and the Complainant states that it caused her humiliation and distress and that it left her child upset and frightened.

Comparators

The Complainant is of Romani ethnicity and states that she was readily identifiable as a member of the Roma community by her appearance, complexion, accent and traditional dress. She maintains that she was restricted from entering and accessing the store on account of her ethnicity, noting that other members of the public entered freely without being stopped by the Security Guard.

Discrimination

The Complainant relies on the Equal Status Acts 2000-2018, which prohibit less favourable treatment in a comparable situation on grounds including race, colour, nationality, and ethnic or national origin, and which prohibit discrimination in the provision of goods and services to the public.

The Complainant  contends that she was treated less favourably than other customers when accessing the Respondent’s premises and that this treatment arose from her Romani ethnic origin.

Burden of Proof

The Complainant submits that, under the Equal Status Acts, she must first establish a prima facie case of discrimination before the burden of proof shifts to the Respondent. Relying on Donnelly v Minister for Social Protection [2022] IESC 31, she contends that a prima facie case arises where the evidence is sufficient to justify a finding in her favour in the absence of an adequate explanation. Referring to Hallinan v Moy Valley Resources DEC-S2008-25, she submits that this requires proof that she falls within a protected ground, that the alleged incident occurred, and that the treatment complained of amounted to less favourable treatment.

The Complainant argues that these requirements are met. It is accepted that she is covered by the race ground, and the Respondent now accepts that the incident occurred, including that she was initially refused entry and then  restricted to accessing the pharmacy only rather than the whole store.

The Complainant therefore submits that the facts establish a prima facie case of discriminatory treatment on the race ground.

Vicarious Liability of the Respondent

The Complainant submits that, pursuant to section 42(2) of the Equal Status Acts, a respondent may be held liable for acts carried out by a person acting as its agent, regardless of whether that person is directly employed by the respondent or engaged through a third-party contractor. Reliance is placed on Axinte v Q-Bar Dublin,  Megan McDonnell v Iceland Stores Ireland Limited and  Nadine Lattimore v Dealz Limited,, in which the WRC similarly found that liability could attach to the respondent notwithstanding that the security guard involved was engaged through a third-party contractor rather than being a direct employee.

The Complainant submits that the relevant case law demonstrates a consistent approach whereby security personnel controlling access to premises are regarded as acting on behalf of the provider of goods and services. Accordingly, the Respondent remains responsible for their actions under the Equal Status Acts, regardless of the contractual arrangements governing their employment.

The Complainant further notes that, in its initial response to the complaint, the Respondent addressed and defended the actions of the Security Guard, asserting that security personnel would not refuse customers entry on discriminatory grounds. It is submitted that this is consistent with an acceptance that the Security Guard was acting on the Respondent’s behalf.

Accordingly, the Complainant contends that section 42(2) of the Equal Status Acts applies and that the Respondent has identified no basis on which to displace its operation. The Respondent is therefore said to be vicariously liable for the actions of the Security Guard in the circumstances of this case.

Interaction with the Security Guard

The Complainant states that she repeatedly asked why she had been prevented from entering the store and whether she had done anything wrong. In response, the Security Guard indicated that he had an issue with certain individuals but did not elaborate further and maintained that he was entitled to refuse her entry. The Complainant advised that she had already informed the guard of her intention to attend the pharmacy and disputed an allegation that she had shouted during an earlier interaction that was not part of her recording.

As the interaction continued, she questioned why she was not permitted to access other areas of the store. The Security Guard then directed her to leave the premises and, when asked for the reason, stated that he was not obliged to provide one. The guard further advised that she could contact An Garda Síochána if she wished to make a complaint.

The Complainant informed the guard that the interaction had been recorded and subsequently left the premises with her child. The incident occurred near the entrance to the store and was visible to other customers. The Complainant states that she felt embarrassed and humiliated by the encounter and that her sick child was upset by the events.

Respondent Responses

The Complainant argues that the Respondent’s explanation has shifted from having no recollection of the incident to alleging that she was suspected of anti-social behaviour, despite no being proffered. She submits that this inconsistency undermines the Respondent’s credibility and that unrelated incidents involving other individuals are irrelevant.

The Complainant contends that the Respondent failed to meet IHREC standards for handling discrimination complaints and did not provide a credible non-discriminatory explanation. Relying on Donnelly v Minister for Social Protection and Hallinan v Moy Valley Resources, she argues that the facts establish a prima facie case of discrimination, shifting the burden of proof to the Respondent.

Following service of an ES1 form, the Respondent’s Claims Handler returned an ES2 form on 17 January 2025, denying liability and stating that there was no record of the incident. After obtaining assistance from FLAC, the Complainant furnished video footage and a transcript of the incident in February 2025. The Respondent then indicated that further investigations would take place and suggested that responsibility might lie with the third-party security contractor.

The Complainant refused to redirect the complaint, taking the view  that the guard acted on behalf of the Respondent. No further response was received, and the complaint was lodged with the WRC on 1 April 2025.

Subsequently, the Respondent alleged that the Complainant had been involved in anti-social behaviour . When particulars were requested, the Respondent declined to provide them. By letter, the Respondent’s solicitors denied liability and asserted that the correct respondent was the third-party security contractor.

Remedy Sought

The Complaint sets out that, should the Adjudicator find that the Complainant was subjected to discrimination having considered the evidence and documentary material, appropriate compensation should be awarded.

The Complaint submits that the discrimination complained of falls at the more serious end of the spectrum. It is contended that the Complainant, a concerned parent attending the Respondent's pharmacy to seek access to a pharmacy service was prevented from entering the shop before being informed that access would only be permitted if the Complainant behaved nicely. The Complaint states that the Complainant was upset and humiliated by being singled out and became frustrated and angry upon concluding that the treatment received was connected to ethnicity.

The Complaint further submits that the matter is aggravated by the nature of the Respondent's business, noting that the Respondent is not merely a retail outlet but also provides an essential public service as a pharmacy. It is argued that restricting access to such a service is a serious matter.

The Complaint relies on Article 15 of Directive 2000/43/EC (the Race Equality Directive), which provides that sanctions for breaches of the principle of equal treatment must be effective, proportionate and dissuasive. The Complaint submits that the Equal Status Acts should be interpreted in light of that requirement.

Accordingly, the Complaint contends that any award of compensation should be effective, proportionate and dissuasive and submits that an award towards the upper limit of the WRC's jurisdiction would be appropriate in the circumstances.

Preliminary Objection –Vicariously Liability and the Late Video Evidence

Third Party Liability

The Respondent raises a preliminary objection to liability on the basis that security services at the relevant premises were provided by a separate entity  under a contractual arrangement. It is submitted that this entity operates independently and that the security personnel involved were neither employees nor agents of the respondent.

The Respondent asserts that Section 42 does not apply in the circumstances, arguing that it does not exercise sufficient control or oversight over the security provider to establish an agency relationship. In this regard, reliance is placed on Sibusisiwe Bulala Kelly v Deutsche Lufthansa Aktiengesellschaft (ADJ-00021088), where it was found that the Respondent had authority to request the replacement of security personnel, indicating a level of control sufficient to ground liability. The Respondent submits that no such level of control exists in the present case.

The Respondent further distinguishes Anne Marie Davy v MCD Productions (ADJ-00024784), in which the WRC found an agency relationship where the Respondent engaged directly with the complainant regarding security arrangements and did not distinguish itself from the security provider, thereby demonstrating control and responsibility for the actions of security personnel. It is submitted that no such representation or control arose in the present matter.

It is also submitted that the contractual arrangement provides that the security provider is responsible for the conduct of its employees. The Respondent notes that the security guard was identifiable as belonging to a separate entity by uniform and branding.

Late Video Evidence

The Complainant provided video evidence of the incident approximately four months after it occurred. The Respondent indicated that the individual shown was employed by the third-party security provider and suggested that the claim be redirected. The Complainant declined to do so, indicating reliance on Section 42 of the Equal Status Acts.

Finally, it is highlighted that the Complainant did not initially provide the video evidence at the time the complaint was made.

Substantive Complaint

Non-Discriminatory  Refusal

The Respondent sets out  that, in the event that it is found to be vicariously liable for the actions of the security guard, the refusal of entry to the Complainant arose from non-discriminatory reasons.

The Complainant alleges discrimination in the provision of goods and services on the grounds of gender and race. It is claimed that the security guard stated that instructions had been received not to admit members of the Roma community. The Respondent notes that the complaint form does not set out specific particulars of the alleged discrimination on the gender ground.

The Respondent submits that, in order to establish discrimination under Section 3(1) of the Equal Status Acts, the Complainant must demonstrate that they were treated less favourably than a comparator not sharing the protected characteristic would have been treated in similar circumstances.

Security Guard Actions

The Respondent maintains that it has never issued instructions to restrict entry on any discriminatory ground and that access to the premises is afforded to all persons, irrespective of gender, ethnicity, or membership of the Roma community.

Prior Conduct

The Respondent sets out that there were other non-discriminatory reasons for the refusal related to the previous behaviour of the Complainant. The Respondent ’s evidence is that the Complainant had previously been involved in anti-social behaviour  at the premises and, as a result, was subject to scrutiny upon entry on the occasion in question. The Respondent wished also to point to a number of other cases involving the Complainant.

Pharmacy Access and Prior Conduct

It is submitted that the security guard allowed limited access to the pharmacy but restricted access to the wider store due to that prior history. Accordingly, the respondent ’s case is that the treatment of the Complainant was grounded in prior anti-social conduct and not on any discriminatory ground prohibited by the Act.

It is respectfully submitted that the facts of and decision in Tanase v Dunnes Stores (ADJ-00027552) should be viewed as comparable to the within case where the refusal of service was found to be for non-discriminatory reasons.

Conclusion

On the basis that no discrimination occurred, it is respectfully submitted that the Complainant’s case be dismissed.

Preliminary Objections

Vicarious Liability

The Respondent submits that it is not vicariously liable and  raises the issue that the refusal was by the Security Guard supplied by a third party to the Respondent . In this the Respondent cites Sibusisiwe Bulala Kelly v Deutsche Lufthansa Aktiengesellschaft (ADJ-00021088), and  Anne Marie Davy v MCD Productions (ADJ-00024784) where a preliminary issue of liability for those respondents  arose.

In Equal Status Act cases, liability under section 42(2) is not determined solely by the contractual relationship between the parties. Rather, the question is whether the individual was acting as an agent of the service provider at the material time. In the present case, the security guard was exercising authority in relation to access to the Respondent's premises and was performing functions on behalf of the Respondent. The fact that the security guard wore the uniform of a separate company or was employed by a third-party contractor may create a further action against that party but  does not alter the  reality of the Respondent’s vicarious liability.

The Respondent appointed the employer of the guard, and it was the security guard who controlled entry to the premises and who interacted with customers in the course of providing the Respondent's services to the public. I am therefore satisfied that the security guard was acting as an agent of the Respondent for the purposes of the Equal Status Acts. While I accept that the Respondent maintains that the actions complained of were contrary to its policies and practices, that does not displace the principle of vicarious liability. Accordingly, I find that the Respondent remains answerable for the actions of the security guard.

I cannot find that either case supports the idea of third-party liability as argued in the within case and I do not accept this argument.

Prior Conduct Allegations

Evidence concerning previous matters involving the Complainant was contained in the Respondent's submissions. It is my duty as  Adjudicator to establish if in the current complaint the Complainant established facts from which discrimination may be inferred and if so,  has the Respondent rebutted that inference? I refer to this as I cannot unsee what was offered to me and, further, to make clear that it is outside of my purview and is not part of my decision making on the  complaint properly before me.

However, I have taken note of the case of Tanase v Dunnes Stores (ADJ-00027552) where a Complainant was found to not have been discriminated against in circumstances where they had been barred for harassing customers for money. I have taken this on the argument within and not in relation to a previous complaint of the Complainant. The case sets out well the ability to refuse for non-discrimination reasons.

However, no substantive evidence was presented to me that the Complainant had been barred by the Respondent due to antisocial behaviour. Had such evidence existed, I do not doubt that it would have been placed before me. Accordingly, I cannot rely on assertion alone.

Video Evidence

I accept that the video footage was not disclosed at the earliest opportunity and that its earlier production may have assisted the Respondent in conducting a contemporaneous investigation, including making enquiries while CCTV footage, body-worn camera recordings and witness recollections were more readily available.

While I regard the delay as a relevant consideration, I am not satisfied that the Respondent has established significant prejudice arising from it. Accordingly, I cannot conclude that the Respondent was deprived of a fair opportunity to investigate the matters complained of or to prepare and present its defence, although I accept that its ability to do so was hampered to some extent.

I further note from the video evidence that the Complainant's conduct was, at times, provocative and contributed to the escalation of the interaction.

Substantive Matters

In assessing the evidence, I have considered the totality of the material before me. It is well established that discrimination may be inferred from primary facts, and that direct evidence is not always available. Accordingly, the drawing of reasonable inferences from the facts is a key element of the assessment.

Burden of Proof

The applicable burden of proof is set out at Section 38A of the Equal Status Act, which provides for a burden-shifting framework. The initial burden rests with the Complainant to establish, on the balance of probabilities, facts from which discrimination may be inferred. This requires the Complainant to establish a prima facie case of discrimination. The threshold at this stage is that the facts proved must be of sufficient significance to raise a presumption of unlawful discrimination. If such a prima facie case is established, the burden of proof shifts to the Respondent to rebut the inference of discrimination. In that event the  Respondent must prove that the treatment complained of was in no sense whatsoever based on the discriminatory ground relied upon.

The Prima Facie Case of the Complainant

The Act prohibits discrimination, harassment, and related discriminatory conduct in the provision of goods and services, accommodation, and access to education, across the specified discriminatory grounds.

The Complainant is a member of the Roma community, and the evidence is clear that she could be easily identified as such and there was no argument to the contrary. The Complainant was by all accounts identifiable of the Roma Community  and it is clear from the evidence that the security guard referred to this in the video evidence where he referred to trouble with “you people”.

 It was a combination of this that led to the Complainant being  restricted in their access to the Respondent premises, (although I must note that  they were offered actual access for the reasons they set out in their complaint, albeit  delayed) and this is clear enough  from the evidence to satisfy the prima facie burden.

Respondent Commitment to Equality

The Respondent's equality and inclusion measures formed part of the overall body of evidence and argument.  I fully accept their overall commitment to equality in its workforce and its customer base and in this regard found them highly credible. However, my findings are based upon the credible evidence relating to the events complained of and not upon any general assessment of the Respondent's corporate values.

I note the incident was not caused by a member of its staff; but an agent who was clearly not adequately briefed  or trained on the operation of the Act. It is unfortunate that the Respondent  commitments  to equality and the provisions of the Act did not extend fully to the third-party staff and this is clearly a weakness in their operational arrangements. While  a good deal of responsibility lies with the provider of that service the Respondent cannot entirely dissociate itself from the actions of persons acting as its agents in the delivery of services to the public.

Conclusion

I find that the Respondent failed to rebut the inference that the treatment complained of was discriminatory on the race ground and the Respondent suggestion  of earlier anti-social activity is unsupported by evidence

I accept that this incident falls far short of the ideals and standard that the Respondent  set for themselves and the lapse falls entirely with its agent, but nonetheless it bears responsibility, vicariously,  for that agent’s actions.

I am also of the opinion, from the video evidence,  that the Complainant's conduct contributed to the escalation of the interaction between the parties and I am mindful of the delay in the provision of the video evidence to the Respondent where the Complainant intended to rely upon the same in their complaint

Redress

In considering the issue of redress, I am guided by the Equal Status Act 2000, which provides that, where prohibited conduct has been established, the appropriate remedy may include compensation for the effects of that conduct and/or an order directing a specified course of action. Accordingly, any redress awarded must be directed towards addressing the effects of the prohibited conduct and achieving an appropriate remedy in the circumstances of the case.

Pursuant to section 27(1)(b) of the Equal Status Acts, I further direct the Respondent to ensure that all security personnel assigned to its premises receive appropriate briefing or training in the requirements of the Equal Status Acts, or alternatively to satisfy itself that such briefing or training has been provided by the employer of those personnel before they are deployed at the Respondent's premises. I make no directions regarding the format or duration of such briefings, only that it addresses the Equal Status Acts and its requirements.

In assessing compensation,  I have regard to all the evidence put to me. I note that the initial refusal to  access the pharmacy  to buy medicine for the Complainant’s sick child was granted and then declined by the Complainant. I note the assertion by the Complainant of the distress and humiliation that they experienced. I also note that the conduct of the Complainant and their own contribution to the escalation of the matter.

I do not find, as the Complainant sets out in their submission, that the incident is on the higher end of the scale and to that end, I further direct that the Respondent pay the Complainant €800.00 in compensation.

I find that the Respondent, through its agent,  did engage in prohibited conduct and find in favour of the Complainant

 I have had regard to all the circumstances of this case while also considering what is a proportionate amount that is sufficiently dissuasive.  I award the Complainant €800.00 in compensation for the effects of the prohibited conduct and determine that this amount is proportionate and sufficiently dissuasive award in all the circumstances that were put to me.

Pursuant to section 27(1)(b) of the Equal Status Acts, I further direct the Respondent to ensure that all security personnel assigned to its premises receive appropriate briefing or training in the requirements of the Equal Status Acts or, alternatively, to satisfy itself that such briefing or training has been provided by the employer of those personnel before they are deployed at the Respondent's premises.

Provision of Goods and Services, Security Guard, Access to Premises, Agency and Liability