EQUAL STATUS ACTS
DECISION NO. DEC-S2016-014
PARTIES
Sangeetha Niranjan
AND
H&M Hennes & Mauritz
(represented by A & L Goodbody, Solicitors)
File reference: ES/2014/0088
Date of issue: February 2016
HEADNOTES: Equal Status Acts 2000-2004-Race-Civil Status.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Niranjan that she was discriminated against by the respondent on the grounds of race contrary to section 3 of the Equal Status Acts in respect of the disposal of goods.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on April 24th 2014 under the Equal Status Act.
1.3 On October 8th, 2015, in accordance with his powers under section 41 of the Workplace Relations Commission Act 2015 Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on October 10th 2015.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant was shopping in the respondent’s shop in Limerick and heard one of the Sales Assistants tell another customer that she only had plastic bags available for ‘wrapping’ goods purchased. She was surprised at this and then noticed that the customer was, (in the complainant’s words ‘a non white Muslim customer (who in any event declined the offer of the bag as she had her own).
2.2 Despite this she then saw another customer leave the pay point with a large branded H & M bag. This customer was described by the complainant as ‘white’.
2.3 When it came to the complainant’s turn to pay for her goods she was told that only white plastic bags were available. After a protest and a threat to return the goods she had bought she was given the branded bag.
2.4 She observed other customers being given branded bags and formed an impression that bags were being allocated on the basis of the customer’s racial background and that this represented discrimination. She said she was ‘humiliated, differentiated horrified and confused’ by the behaviour of the shop assistant.
3 RESPONDENT'S SUBMISSION
3.1 The respondent says that it has three sizes of branded shopping bags and that at the material time it had run out of the small and medium bags and had arranged replacement, non branded white plastic bags while it awaited delivery of the branded bags.
3.2 It says that the only basis on which a decision regarding an offer of a bag to a customer was the size of the purchase in terms of its bulkiness and the need to bag it appropriately.
3.3 Detailed and persuasive evidence was given of the series of purchases made at the time the complainant was in the shop based on observation of CCTV footage and till receipts.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the treatment of the complainant was discriminatory on the grounds of her race. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. The complainant was given the opportunity to make further submission in response to the evidence introduced by the respondent at the hearing.
4.2 The complainant sought an opportunity to comment on evidence which was introduced at the hearing for the first time in the form of detailed till receipts, showing the purchases made (by price and therefore volume) and which bags were proffered as a consequence. As she was not represented this was agreed and she was invited to make her further submission by November 4th 2015.
4.3 She did so on November 7th. In due course the respondent made a further submission in response on January 21st 2016. I have considered these additional submissions and address them in the course of what follows, but only in respect of the discreet issue of the till receipts which was the issue on which the opportunity to make a further submission was granted.
4.4 I accept the evidence of the respondent that the Sales Assistant determined which bag she would offer a customer based on the size of the purchase only. The complainant made a small purchase of three items and was offered a plastic bag as the available branded bag would have been much too big.
4.5 There were nine purchases monitored in the relevant period. Three of these customers were ‘non-white’, (to adopt the terminology of the complainant), two got plastic bags and one got a paper bag. (This latter customer had purchased nine items) There were six ‘white’ customers; three of whom got plastic bags and three got paper bags on the basis of the size of their purchase. The complainant challenged detail related to the till receipts evidence (and this was the matter on which she made her further submission, referred to above) and indeed to whether the bag produced at the hearing was the one provided on the day the complaint arose but made no effective point at the hearing that would go any way to ground a claim of discrimination.
4.6 There is no merit to the complainant’s case whose reaction to what was only a partial observation of the facts was quite erroneous and disproportionate. Her subsequent submission on the sequence of till receipts was rebutted by the respondent which provided a credible explanation for the disruption in the sequence (they were from different tills). Even then this case did not turn on that point as the burden of proof remained with the complainant.
4.7 It is a moot point whether the allocation of bags on the basis alleged by the complainant, even if proved, would represent ‘less favourable treatment’ as provided for by the act, but not one I have to determine. The complainant compared the plastic bag to ‘a bin bag’ and referred to the branded bag as ‘the attractive turquoise coloured paper bag with H&M logo’. It is highly dubious whether the Equal Status Act extends to the protection of such preferences.
4.8 Indeed, I accept the submission by the respondent that this is an entirely trivial matter, verging on vexatious. Despite the extraordinary and disproportionate detail of the subsequent submission much of it related to matters outside the jurisdiction of the case (such as customer service issues subsequent to the purchase).
4.9 I have considered the authorities submitted by the complainant and find that none of them are relevant on their facts to the facts of this case. In respect of those related to the burden of proof I find that she has not met the evidential threshold to shift the burden of proof.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The complainant has not established a prima facie case of discrimination. The respondent has conclusively justified its practise in relation to the allocation of the bags on the occasion of the complainant’s visit and the claim fails.
5.2 Accordingly I dismiss the claim
_________________________
Pat Brady
Adjudication Officer/Equality Officer
18th February 2016