THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 1998-2008

Decision No. DEC –  S2009- 021

PARTIES

Mr. Philip Gahan

and

Valour Investments T/A Shell Mulhuddart

File Reference: ES/2006/0064

Date of Issue:  3 April 2009

 Key words

Equal Status Acts 2000-2004 – Section 3(2)(f), age ground – alleged prohibited conduct – refusal of service - access to petrol pump – pre-pay – Shell – Clonsilla – Mulhuddart – request for ID - implied request for ID - Section 14(1) –Dangerous Substances (Retail and Private Petroleum Stores) Regulations, 1979 – Health and Safety Authority – warning letter – threat to licence – anti social behaviour – notice in prominent place

1.     Delegation under the relevant legislation

1.1.     On 20 June, 2006, the complainant, Mr Philip Gahan, referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008, the Director delegated the case to me, Gary O’Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008. This delegation took place on 29 July, 2008, on which day I commenced my investigation.

1.2.     As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Wednesday, 4^th February, 2009. Both parties were in attendance at the hearing.

2.     Dispute

2.1.     The dispute concerns a complaint by Mr Gahan that he was discriminated against by the respondent on the Age ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a) and 3(2)(f) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, particularly in that he was discriminated by the respondent in being refused access to the respondent’s petrol pumps and to the petrol contained therein.

3.     Case for the Complainant

3.1.     The Complainant stated that, on 13th April 2006, at which time he was 18 years of age, he drove onto the respondent’s premises to obtain petrol for his car, but found that the particular pump he went to was not switched on. The complainant said he then entered the shop and was told by the shop assistant that the relevant pump was a pre-pay pump. He noticed that a person at another pump had taken petrol before paying, so, when that person moved away, the complainant took his place. He tried to obtain petrol at this pump, but found that it was not turning on either. He said that he then went back into the shop and questioned the assistant about this. He said that the assistant again said the pump was pre-pay, to which the complainant responded by asking why he was being singled out. The respondent’s reply was “your face, you look too young” at which point the complainant left the premises. The complainant added that the assistant refused to give his name or the name of the Manager and that at no stage in the shop was he asked for ID.

3.2.     Though it did not form part of his complaint, the complainant also referred to another similar incident at Shell Clonsilla sometime after the aforementioned incident. He said that, aside from this, on no other occasion had he been refused access to a petrol pump without being asked for ID. He said that he was driving a car at the petrol station, in which case he could not have been a minor. He also refuted that the statement “you look too young” was an implied request for ID and said that if he had been asked for ID, he would have produced it. In short, the complainant stated that he was discriminated against on the grounds of his age because people of other ages were getting a fill of petrol without difficulty. He submitted that the reason why young people were being “singled out” by the respondent was because there was anti-social behaviour in the area.

4.     Case for the Respondent           

4.1.     The Respondent, Valour Investments Ltd., has, since May 2004, operated the Shell petrol station in Mulhuddart in which the alleged incident of discrimination took place, and also operates the Shell petrol station in Clonsilla to which the complainant also referred.

4.2.     Mr Adeola Ogunsina, who was present at the hearing on behalf of the respondent, is a Director of the respondent company. He acknowledged that the incident in question did take place, although he did not witness it and the shop assistant involved was not available to give evidence. However, he disputed elements of the description of the incident that was given by the complainant. In particular, Mr Ogunsina said that the shop assistant had made the statement “you look too young”, but had then asked the complainant for identification, which the complainant had refused to provide. In any event, Mr Ogunsina submitted that this statement implied that the complainant should produce ID to prove his age. He said that the shop assistant refused to give his name or the name of manager because the complainant had been “a little bit” abusive, though the respondent understood that this had arisen from Mr Gahan’s frustration at the situation.

4.3.     It is the respondent’s policy that the staff of its stations do not authorise fuel pumps to persons under the age of 15. It was submitted by the respondent that this policy is carried out in accordance with its obligations under the Dangerous Substances Act, 1972 and the Dangerous Substances (Retail and Private Petrol) Stores Regulations, 1979, and is clearly stated in notices which appear on all islands on the forecourt. This notices states that “no persons under 15 years of age may dispense petroleum”. The respondent has trained its staff to challenge anybody they think is under age in those terms and believes it has the right to ask for proof of age in circumstances like the one in question as it could only judge age by asking for ID. It considers that the onus is on customers to show proof of age in those circumstances. By way of background to this policy, the respondent stated that, in 2004, an investigation of its premises had been carried out by the Health and Safety Authority (HSA) on foot of complaints received by it. It issued a warning letter on foot of this inspection, in which, inter alia, the respondent was informed that it should review and update staff training in relation to compliance with the aforementioned statutory instruments. The respondent stated that its licence would have been revoked if it had not complied with these instructions.It added that the incident involving the complainant that had taken place at its premises in Clonsilla was proof that this policy was applied consistently at all its premises.

4.4.     In relating this policy to the incident in question, Mr Ogunsina said that the shop assistant believed that the complainant was under the age of 15 at the time. Having inspected CCTV footage of the incident, Mr Ogunsina did not dispute that the complainant had been driving the car, although he could not say whether either of the two staff members on duty at the time had seen him getting out of the driver’s side. In any event, he queried why, if the complainant was over-age, he did not prove his age, and said that if he had done so, the shop assistant would have served him. He said that, though the complainant might not have seen the notice about the Regulation, it was there. He denied that anti-social behaviour was a factor in applying the policy in question, although he said he did have to install state-of-the-art CCTV for security reasons.

4.5.     In summary, the respondent said it had a duty to comply with the law and did not see how it could do so, in all the circumstances of the complaint, without refusing service to the complainant until he produced satisfactory proof of age. It was the same in complying with any other legislation involving minors, including in relation to the sale of tobacco. In short, the complainant was refused service because he refused to provide ID.

5.     Conclusions of the Equality Officer

5.1.     Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. 

5.2.     In making this decision I have taken cognisance of all the oral and written submissions made by the parties. The complainant’s case is that the respondent treated him less favourably by refusing him access to petrol and thereby denying him a service, because of his age, when others, of different ages to the complainant, were served petrol. The essence of the respondent’s submission is that, while the complainant was refused access to the pump initially, it was obliged to do so, at least in the absence of satisfactory proof of age, because it was complying with its legal obligations under the Dangerous Substances Act, 1972 and the Dangerous Substances (Retail and Private Petroleum Stores) Regulations, 1979, the latter of which states, inter alia, that “A person under 15 years of age shall not be permitted to carry out any work or operation in connection with the conveyance, dispensing or storage of petroleum Class I at a retail store or a private store[1]”.   In order to ensure compliance with this Regulation, the respondent has applied a strict policy whereby its staff have been instructed to ask for identification if in any doubt about the age of the relevant customer who seeks to dispense petrol. In that context, the key elements to the respondent’s submission are its claim that the shop assistant who refused service to the complainant did so because he believed him to be under 15 years of age and its submission that the complainant would have been served if he had been able to produce sufficient proof of his age. As proof that it was applying the policy in question in a consistent manner, it pointed to the refusal of service to the complainant, on the same basis, at a different petrol station under its auspices.

5.3.     In seeking to discharge the burden of proof, the onus is on the complainant in this case to prove that prohibited conduct occurred in relation to him on the ground of age. In that context, I note that Section 14(1) of the Acts states, inter alia, that:

“Nothing in this Act shall be construed as prohibiting –

(a)  the taking of any action that is required by or under –

(i)                any enactment or order of a court…”

Therefore, I must first consider whether the respondent was required by the relevant Regulation to refuse the complainant access to petrol in the absence of sufficient proof of age. For if it was, then it was not engaging in prohibited conduct by doing so. 

5.4.     I accept that the complainant was, relatively, much older than the minimum age in question and I would be surprised if, in the normal course of events, he was confused with a 14 year old.  In that regard, I note that he had been driving the vehicle, a car, and therefore would have had to be no younger than 17, if he was doing so lawfully. I also agree with the complainant’s contention that the level of caution exercised by the respondent on this issue would not be the norm in petrol stations generally and was relatively strict. However, it is clear that the respondent believed, in good faith, that there was a threat to the continuation of its licence, and thereby its livelihood, if it did not apply the policy in the manner that it did. It is also the case that the respondent provided a clear instruction to all its staff in all its petrol stations to request identification from customers who they thought might be minors within the meaning of the Regulation in question. The policy in question was therefore applied in a consistent manner in all the petrol stations under the respondent’s control and was implemented because the respondent believed its licence to be under threat. In that context, and taking into account all the other circumstances of the present complaint, I consider that, on balance, the respondent was acting in a bona fides manner and was seeking to comply with the relevant enactment by refusing to allow the complainant dispense petrol, in the absence of satisfactory proof of age. It was therefore entitled to do so under Section 14(1) of the Equal Status Acts.

5.5.     The complainant further contends, however, that in implementing this policy, the respondent should have made an explicit request for identification and its failure to do so raises an inference of discrimination as defined by Section 38A. While the respondent submitted that it did make an explicit request, I find that, on balance, the evidence of the complainant is more compelling in this regard. It may be that the staff member involved intended on asking for identification but the complainant left before he had an opportunity to. In any event, I do not believe the complainant was explicity asked to produce identification.

5.6.     On the other hand, it is accepted by both sides that the staff member involved stated “your face, you look too young” and the respondent contends that this was an implicit request for identification. I accept the respondent’s submission that the complainant would have been served if he had produced identification showing he was over the age of 15. I also note that there was a notice in a prominent place in the respondent’s premises stating its obligations under the Regulation. Taking these factors into account, and once it had been indicated to him that he was being refused service because the respondent considered that he was “too young”, I am satisfied that it should have been clear to the complainant that the reason for the refusal was because the respondent was seeking to comply with the relevant Regulation. Given that the onus is on the complainant to show that there was prohibited conduct, I am not satisfied that, in all these circumstances, the respondent’s failure to then make an explicit request for identification is sufficient to shift the burden of proof to it and away from the complainant.

5.7.     As the complainant has failed to show that respondent engaged in prohibited conduct in refusing him access to petrol in the absence of sufficient proof of age, and in the absence of any other evidence of prohibited conduct by the respondent, the complainant has failed to established a prima facie case and has failed to shift the burden of proof to the respondent. His complaint therefore fails.

6.     Decision

6.1.     In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision: 

6.2.     I find that the complainant has failed to establish a prima facie case of less favourable treatment on the ground of age in terms of sections 3(1)(a) and 3(2)(f) and Section 5(1) as, further to Section 38A of the Equal Status Acts, 2000 to 2004, he has not established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to him.

6.3.           Accordingly, I conclude the investigation and find against the complainant.

_____________

Gary O’Doherty

Equality Officer

3 April 2009