THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2011-051
PARTIES
Noreen Dooley
and
Tesco Ireland Limited
(represented by Ms. Clodagh Brick B.L.
on the instructions of Ronan, Daly, Jermyn Solicitors)
File Reference: ES/2010/021
Date of Issue: 16 November, 2011
Key Words
Equal Status Acts, 2000 to 2008 - Direct discrimination, Section 3(1) - less favourable treatment, Gender Ground - Section 3(2)(a), Age Ground - Section 3(2)(f), Traveller community Ground - Section 3(2)(i), failure to establish a prima facie case
Delegation under Equal Status Acts, 2000 to 2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 15th February, 2010. On the 22nd September, 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008 the Director delegated the case to me, Enda Murphy, 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 Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 21st October, 2011.
1. Dispute
1.1 The dispute concerns a complaint by Ms. Noreen Dooley that she was discriminated against by the respondent on the Gender, Age and Traveller community grounds contrary to section 5 of the Equal Status Acts, 2000 to 2008 when she was shopping at the respondent's store on 17th November, 2009.
Summary of the Complainant's Case
2.1 The complainant stated that she was present in the respondent's store in the Deerpark Retail Centre, Killarney on 17th November, 2009. The complainant was accompanied by her sister on this occasion and she claims that she had purchased a pack of baby nappies for her niece which she had paid for at the self service check outs. The complainant stated that she was standing at the end of the check out waiting for her sister when the Security Officer (Mr. A) approached her and accused her of not having paid for the nappies. The complainant stated that the Security Officer approached her in an aggressive manner and proceeded to take the pack of nappies from her. The complainant stated that she showed the Security Officer the receipt that she had obtained after purchasing the pack of nappies and he then returned the nappies to her.
2.2 The complainant stated that she informed the Security Officer that she was going to get the Store Manger and his reply was 'go and get him' and he did not even apologise for having accused her of not having paid for the nappies. The complainant went to the Customer Service Desk and requested to speak to the Store Manager. She stated that she subsequently spoke to the Store Manager (Mr. B) and informed him of what had happened with the Security Officer. The complainant stated that the Store Manager apologised to her and informed her that it would not happen again, following which she left the store. The complainant claims that she was subjected to this treatment by the Security Officer because of her Traveller identity and also because she was young and a female. The complainant claims that she was extremely embarrassed because the place where she was approached by the Security Officer was in public and the incident was witnessed by many other customers who were in the store at that juncture. The complainant also stated that this was not the first time that such an incident had occurred in the respondent's store and she claims that she was accused of stealing a doll by the same Security Officer a week previous to the incident in the present case.
Summary of the Respondent's Case
3.1 The respondent denies that it subjected the complainant to discrimination on any of the grounds claimed. The respondent accepts that the complainant and her sister were present in its store in the Deerpark Retail Centre in Killarney on 17th November, 2009. The respondent stated that it came to the attention of the Self Scan Supervisor (Mr. C) that an item of nappies had not been scanned through till number 74 and was at the end of the checkout. Mr. C brought this information to the attention of the Security Officer (Mr. A) that was on duty at that particular juncture. The Security Officer was accompanying the Cash Officer (Ms. D) to do a cash pick up from the self scan checkouts when this information was brought to his attention by the Self Scan Supervisor (Mr. C). The respondent stated that the Security Officer (Mr. A) approached the complainant at the self scan checkout and informed her that the aforementioned item did not appear to have gone through the scanner. The respondent denies that Mr. A accused the complainant of attempting to steal the pack of nappies at any stage during their conversation.
3.2 The respondent stated that the complainant reacted very aggressively to Mr. A and began to scream at the Security Officer indicating that he was accusing her of stealing. The respondent stated that the Security Officer attempted to calm the complainant down but was unable to do so. At this point the complainant went to the Customer Service desk and sought to speak to the Store Manager (Mr. B). The respondent stated that the Store Manager (Mr. B) was called and he spoke to the complainant who was very irate and informed him that she had been accused of stealing a pack of nappies by the Security Officer. The respondent stated that the Store Manager (Mr. B) also attempted to calm the complainant down; however, she informed him that she would be referring the matter to her solicitor. The respondent stated that the Security Officer would frequently approach customers in such a manner if it was brought to his attention that items of goods did not appear to have been put through the scanner at the self service checkouts. The respondent denied that the reason the complainant was approached in such a manner by the Security Officer on the date in question was in any way connected to her gender, age or Traveller identity.
4. Jurisdictional Issue
4.1 At the oral hearing of the complaint, the complainant claimed that the incident which occurred on 17th November, 2009 was not the first occasion that she had been accused by the respondent's Security Officer (Mr. A) of stealing an item of goods from the store in the Deerpark Retail Centre, Killarney. She claimed that she was accused by the Security Officer (Mr. A) of attempting to steal a doll on a visit to the store approximately a week prior to the date of the incident which is the subject of the present complaint. The respondent submitted that I did not have any jurisdiction to investigate the earlier incident on the basis that the complainant had not provided any information or details in relation to this incident prior to the oral hearing of the complaint and therefore, that she has failed to comply with the time limits provided for in section 21 of the Acts.
4.2 Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the notification and referral of complaints. Section 21(2)(a) of the Acts states:
"(2) Before seeking redress under this section the complainant -
(a) shall, within two months after the prohibited conduct is alleged to have occurred, or, where there is more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of -
(i) the nature of the allegation
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act"
Section 21(2) of the Equal Status Acts puts the onus on the complainant to notify the respondent of the alleged act of discrimination and his/her intention to seek redress under the Acts. Therefore, to avail of the provisions of the Acts, a person who claims that prohibited conduct has been directed against him or her shall, within two months of the alleged incident of prohibited conduct, notify the respondent in writing of the nature of the alleged incident.
4.3 I am satisfied in this case that the respondent was not notified within the two month time limit of the alleged earlier discriminatory act in accordance with the provisions of section 21 of the Acts. In the present case, the complainant's legal representative wrote to the respondent on 24th November, 2009 and informed it about the discriminatory treatment that is alleged to have occurred on 17th November, 2009 (i.e. the alleged discrimination as detailed above). In this letter the complainant failed to disclose any details regarding either the date or the substance of the alleged earlier incident. Neither did the complainant disclose any further details regarding the earlier alleged incident in the Complaint Referral Form or the written statement which she furnished to the Tribunal in relation to the alleged discriminatory treatment which occurred on 17th November, 2009. The first occasion that the complainant sought to elaborate on the details of the earlier incident and/or to provide any substantive information regarding the alleged discriminatory treatment in relation to this incident was at the oral hearing of the complaint on 21st October, 2011. I am also mindful that the complainant had the benefit of legal advice at the time she was notifying the respondent of the discriminatory treatment which is alleged to have occurred on 17th November, 2009. In addition, I was presented with no reasonable cause as to why the time limits had not been complied with and am satisfied that the Director has not been approached nor granted any extension of time under section 21(3)(a) of the Acts.
4.4 Having regard to the foregoing, I am satisfied that the complainant has failed to comply with the notification requirements as provided for in section 21 of the Acts in relation to the alleged earlier incident of discrimination. Accordingly, I find that I do not have jurisdiction to investigate the circumstances surrounding this alleged incident of discrimination. In the circumstances, my investigation is confined to the alleged discriminatory incident which occurred on 17th November, 2009.
5. Conclusions of the Equality Officer in relation to the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 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 she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Traveller community Ground
5.2 It was not in dispute between the parties that the complainant is a member of the Traveller community. The complainant has claimed that she was subjected to discrimination on the grounds of her membership of the Traveller community in terms of the manner in which she was treated by the respondent's Security Officer (Mr. A) during the course of an incident that occurred on 17th November, 2009. The complainant claims that she was accused by the Security Officer of not having paid for a pack of nappies on this occasion. The respondent denies that the complainant was subjected to discrimination on the grounds of her membership of the Traveller community and it submitted that the complainant was approached by the Security Officer on this date because it appeared that a pack of nappies at the self service check out where she was situated had not been put through the scanner. The respondent denies that the complainant was accused of not having paid for the pack of nappies or that she was singled out for this treatment on the grounds of her membership of the Traveller community. Therefore, the question that I must decide in relation to this issue is whether the complainant was treated less favourably than another person would have been, in similar circumstances, on the grounds of her membership of the Traveller community in terms of the manner in which she was treated by the Security Guard during the course of the incident that occurred on 17th November, 2009.
5.3 I note that it was not in dispute between the parties that an incident occurred between the Security Officer and the complainant in the respondent's store on 17th November, 2009. It was also accepted that this incident occurred at the self service check out area after the Security Officer approached the complainant and raised an issue regarding a pack of nappies which was situated at the end of the checkout. The actual issues that are in dispute between the parties are firstly, whether or not the Security Officer accused the complainant of not having paid for the pack of nappies and secondly, whether the Security Officer subjected the complainant to this treatment on the grounds of her Traveller identity. In considering this issue, I note that the Security Officer did not attend the oral hearing to give evidence in relation to the incident and the respondent submitted that he was currently on a career break from the company and had returned to his native Russia.
5.4 Notwithstanding the foregoing, I note that the respondent submitted a statement from the Security Officer in relation to the incident which was taken on 30th November, 2009 (after the respondent had received notification of the complaint from the complainant's legal representative). It is clearly stated in this statement that the Security Officer approached the complainant (whilst accompanied by Ms. D, Cash Officer) after it had been brought to his attention by the Self Scan Supervisor (Mr. C) that an item of nappies had not been scanned through the self scan station where the complainant was situated. The Security Officer's statement proceeds to outline that he approached the complainant and stated "I am sorry but I am afraid that this item did not go through the scanner" following which it is stated that the complainant started screaming at him that he was accusing her of stealing. The respondent adduced evidence from both the Self Scan Supervisor (Mr. C) and the Cash Officer (Ms. D) at the oral hearing regarding the circumstances surrounding the manner in which the Security Officer approached the complainant on the date in question. I have taken particular note of the evidence of Ms. D, Cash Officer, who accompanied the Security Officer to the self scan station and witnessed the entire conversation between both him and the complainant. I have found the evidence of both Mr. C and Ms. D to be very credible and I am satisfied that it corroborates the account of events that was outlined in the Security Officer's statement regarding his interaction with the complainant during the course of the incident.
5.5 Having regard to the totality of the evidence adduced, I have found the respondent's evidence to be more compelling regarding the nature of the incident that occurred between the Security Officer and the complainant at the self scan check out station on 17th November, 2009. I am satisfied that the reason the Security Officer approached the complainant on this occasion was to query an item of goods which the Self Scan Supervisor had informed him did not appear to have been put through the scanner. I accept the respondent's evidence that the complainant was not accused by the Security Officer of attempting to steal the nappies and that the respondent is frequently required to approach customers in such circumstances within the store. Indeed, I would point out at this juncture that the respondent confirmed that it fully accepts the complainant paid for the item of goods on the date in question and this became apparent when the complainant produced the receipt for the item of goods after she had been approached by the Security Officer. Having regard to the foregoing, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the reason why the complainant was approached in such a manner by the Security Officer was in any way attributable to her Traveller identity or that a non-Traveller would have been treated any differently in similar circumstances. I have also taken note of the complainant's evidence that she has attended the respondent's store on numerous occasions since the incident on 17th November, 2009 and that she has not been subjected to any adverse treatment on any of these subsequent occasions on the grounds of her Traveller identity. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her membership of the Traveller community in terms of the manner in which she was treated by the respondent's Security Officer on 17th November, 2009.
Gender an Age Grounds
5.6 Having regard to the evidence adduced, I am satisfied that the complainant has failed to adduce any evidence whatsoever from which I could reasonably conclude that the manner in which she was treated by the Security Officer during the course of the incident that occurred in the store on 17th November, 2009 was in any way attributable to her gender and/or age. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender and age.
Decision
6.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the Gender, Age and Traveller community ground in terms of sections 3(1) and 3(2)(a), 3(2f) and 3(2)(i) and contrary to section 5(1) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent.
_________________
Enda Murphy
Equality Officer
16 November, 2011