THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2015
Decision No. DEC-S2016-074
Aidan and Rose Maughan
[represented by Gilvarry and Associates Solicitors]
-v-
New Look Retailers (Ireland) Ltd
[represented by John G. O’Donnell B.L instructed by BLM (Ireland) ]
File Reference: et-150120-es
Date of Issue: 15th November 2016
Key words: Equal Status Acts, the Traveller community ground, Vicarious liability, Harassment, Agent, No prima facie case,
Delegation under the relevant legislation
1.1. This case concerns a complaint by Aidan and Rose Maughan that they were harassed by New Look Ltd on the Traveller community ground contrary to 5(1) of the Equal Status Acts 2000 – 2015 [hereinafter referred to as ‘the Acts’]. On 16th October 2014 the complainants referred a claim to the Director of the Equality Tribunal under the Acts. On 7th January 2016, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2015 and under these Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 13th January 2016.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 84(3) of the Workplace Relations Act 2015.
2. Summary of the Complainant’s Case
2.1. Ms Maughan liked to shop in this story in Castlebar as the clothes were on-trend and good value. However, she sometimes felt uncomfortable as, according to her, the Security Guard followed her around the shop. She asked her husband to accompany her the next time. On 19th June 2014 both complainants went into this clothes shop. Mr Maughan stayed near the door. Ms Maughan said that again she felt uncomfortable as the Security Guard followed her while she was browsing. She submits that he was shadowing her. She maintains that she has never been in trouble with the law before so there was no need for this. Mr Maughan observed this and he became annoyed on his wife’s behalf. He submits that he asked to speak to the manager. Both he and his wife were waiting for the Manager or so they thought. The next thing that happened is that two Gardaí arrived on the scene. According to the complainants one of the Gardaí said ‘Is this another theft?’ The Maughans state they felt embarrassed at the way it was handled. The Gardaí then asked the Maughans to leave the shop and if they had any issue they could contact their solicitor. The Maughans feel aggrieved at what they regard as a disproportionate response to a legitimate complaint.
2.2. They submit that they made the request to speak to the manager in a calm way and this is how the staff reacted. They accept that the role of a Security Guard is to monitor shoppers to ensure shoplifting does not occur. However, they argue that no member of the settled community would be treated in the same way. The question by one of the Gardaí added insult to injury.
3. Summary of the respondent’s case
3.1 The respondent argues that the wrong respondent was named. The Security Guard referred to is not and never has been an employee of the respondent. He was an employee of Securitas Security Service Ltd. As part of the contract between New Look and Securitas, the respondent argues that Securitas have agreed to indemnify the respondent against all claims (arising out of tort) to the value of £5,000,000.
3.2 However, in the alternative the respondent argues that a different version of events occurred than what was argued by the complainants. The security guard provided a written statement. As he was not an employee of the respondent, the respondent did not compel him to attend the hearing. In his statement he said ‘I was doing a routine patrol of upstairs and was approached by a gentleman who asked me why I was always following travellers and if I fancied traveller women. He became more aggressive when I told him that I was doing a routine inspection. He then asked to speak to a manager’. The security guard got the supervisor’s attention. Ms L (supervisor) gave direct evidence at the hearing that Mr Maughan approached her in an aggressive way and asked to speak to the manager. She stated that the Store Manager was not on duty that day but she was happy to help. She said she would attend to these customers and be over to assist them then. She rang the Gardaí as Mr Maughan was very aggressive and being verbally abusive. When she went over Mr Maughan referred to an incident the previous day where his daughter slipped down a step in the store and that it was the respondent’s fault as the Security Guard was following his daughter and his wife. Ms B (another supervisor) approached the situation as Mr Maughan was causing a disturbance. She stated that she was working the previous day and from the CCTV footage, his daughter was wearing flip-flops and that is how she slipped. An accident report was filled out at the time and his daughter was asked whether she required medical assistance. She said that she did not as she was not actually injured. Mr Maughan then got even angrier then and requested the Gardaí be called. She informed him that the Gardaí were on the way. The Gardaí arrived shortly afterwards She said one of the Gardaí did say ‘Is this in relation to a theft?’ However when her colleague rang the Gardaí she merely said that there was a disturbance in the shop. Therefore, it was an innocuous question by the Garda to find out what the situation was. However, she submits that the store cannot be held liable for a question asked by a Garda. Mr Maughan accused the Garda of being racist to settled travellers. The Garda explained that if the Maughan had an issue with the Security Guard, that was a civil rather than a criminal matter and the Maughans should discuss it with their solicitor. Mr Maughan asked for the names and numbers of the Gardaí which they freely gave. The Maughans then left the shop. Ms B submits that Mrs Maughan appeared embarrassed at the situation. On leaving, Mr Maughan said ‘I’ll see ye later’.
3.3 The respondent points out that the Maughans continue to shop at the store. They submit Mrs Maughan bought clothes in the shop the following day. They were never deprived of a service, nor refused entry, nor were any derogatory remarks made to them. Mrs Maughan is a good customer. New Look are happy to clarify that she has never stolen anything from the store nor has she been accused of it.
4. Conclusions of the Equality Officer
Preliminary issue– correct respondent
4.1 First of all, I fully accept the respondent’s contention that it was not the security guard’s employer. It did not pay him directly and his contract of employment was not with them. In fact his employer was one of the best known suppliers of security and cleaning services in the State. Therefore, his employer is an employment agency within the meaning of Section 2 of the Employment Equality Acts i.e. a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers. Consequently, the respondent is a provider of agency work as defined in Section 2(5) of the Employment Equality Acts i.e. a person who, under a contract with an employment agency obtains the services of one or more agency workers but is not their employer for the purposes of the Acts. New Look, who is the respondent named in this case, obtained the services of many security guards including the one of the persons accused of harassment by the complainants for their stores. Section 42(2) of the Equal Status Acts states:
(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.
4.2 Therefore the respondent is vicariously liable for the actions of the security guard while working in their store. In fact the respondent enjoyed significant command and control over the security guard. They could tell him where to patrol in the shop, when to take his breaks etc. I asked whether the respondent ever had to reprimand a security guard (not directly employed by them) previously. Ms B stated a security guard had gone AWOL from the store during a match where Mayo were playing. Ms B reprimanded him directly as well as contacting his employer. For all of these reasons New Look is legitimately named as a respondent.
4.3 Section 38A of the Acts sets out the burden of proof:
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.
The complainants submit that they felt harassed in the Store because of their membership of the Travelling Community. Harassment is defined in Section 11 of the Acts:
11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (‘‘the victim’’) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or
(c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority.
(2) A person (‘‘the responsible person’’) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.
(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
(5) (a) In this section—
(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.
4.4 The respondent is a provider of a service in that it provides goods to be purchased. The complainants submit that the actions of the security guard created a hostile and degrading atmosphere for them. They submit that this was compounded by the way the complaint was treated and by the remarks made by one of the Gardaí.
4.5 First of all, the respondent states that they are careful about the security guards allowed to work in their store. The respondent investigated thoroughly the allegations against the security guard. They gave direct evidence of examining CCTV footage as well as their own personal surveillance. They maintain that he did not shadow the complainants or their daughter. The respondent submits that Castlebar and its hinterland has a large Traveller population and there have been no complaints against this security guard or direct employees of the store by other Travellers. For these reasons I am satisfied the respondent is entitled to the defence in Section 11(3) in relation to the allegations regarding the security guard.
4.6 Regarding the way the two supervisors handled the complainants’ issue with the security guard, I am satisfied that it was handled well. Mr Maughan took a very aggressive approach from the start necessitating two supervisors to deal with the situation. In fact it was Mr Maughan who created a hostile and offensive atmosphere in the store rather than the staff. Telephoning the Gardaí is not a step lightly taken by a retail worker. It must be remembered that Mr Maughan asked for the Gardaí to be called himself albeit after they had already been contacted. I accept the respondent’s evidence that they did not inform the Gardaí what the issue was about and certainly cannot be held responsible for remarks made by the Gardaí. What is very telling in the analysis of evidence is that Mrs Maughan shopped in the store the following day and many times after that. Therefore, on the balance of probabilities the complainants were not harassed by the respondent or its agents.
Decision
5.1In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
I find that the complainants have failed to establish a prima facie case of harassment or unlawful discrimination on the Traveller community ground contrary to Section 5 (1) or Section 11 of the Equal Status Acts.
Accordingly, the complainants’ case fails.
_______________
Orlaith Mannion
Equality Officer/Adjudication Officer