EQUAL STATUS ACTS 2000 AND 2012
DECISION NO. DEC-S2016-062
PARTIES
Complainant
(Patrick Donaghy and Company Solicitors)
AND
A Retail Outlet
(O‘Hanrahan and Co. Solicitors)
File reference: et -154129-es-15
Date of issue: 24th October 2016
HEADNOTES: Equal Status Acts – Race – Discrimination
1. Dispute
1.1 This dispute concerns a claim by the Complainant that he was discriminated against by Retail Shop G on ground of race in terms of Sections 3(2) (h) of the Equal Status Act, 2000-2012
1.2 The complainant referred his claim against Retailer (G) to the Director of the Equality Tribunal under the Equal Status Acts on the 5th Mar 2015. On the 30th August 2016 in accordance with section 25 of the Equal Status Act 2000 to 2014, the Director of the Equality Tribunal then delegated the case to me, Michael McEntee, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 5th September 2016.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Complainant’s submission
2.1 On the 24th September 2014 the Complainant visited the Shop in relation to a battery change for his watch. The battery was changed by Mr.D, a member of staff, but shortly afterwards the Complainant noted that the seal on the back of watch was not to his satisfaction. He returned to the Shop and queried the warranty situation of the watch in regard to waterproofing. The seal was replaced by Mr. D. The Complainant again queried the warranty position of the watch in regard to the replacement battery and seal. At this stage the manager/owner of the Shop became involved in the matter and told the Complainant, in aggressive and racist language in regard to persons of Polish nationality, to remove himself from the Shop and not come back.
The Complaint was shocked and distressed by the language and manner of the Shop owner.
3: Respondents Submission
3:1 The basic facts were agreed. The Complaint had visited the Shop on the 24th September and had the battery replaced. The seal was also later replaced.
The Complaint had become very aggressive in relation to the refusal of the Shop to agree to his terms in relation to a warranty. The Shop maintained that a warranty on a watch such as in this case can only be provided by the original manufacturer. The Shop can change the battery and renew the seal but cannot provide a warranty. This is standard practice in the watch making/repair trade.
3:2 The Complaint had taken a very aggressive approach to this warranty manner, had raised his voice and behaved in a manner that was inappropriate. The Shop owner, who was dealing with another customer at the time, had intervened in the conversation to request the Complainant to moderate his language. He had not used any racist language in relation to the Polish origins of the Complainant as apart from his non Irish accent he had no way of knowing what national background the Complainant came from.
The warranty situation was standard practice in the trade and while it obviously upset the Complainant it did not justify the manner or language used by the Complainant towards Mr. D. The Owner felt that he had to request the Complainant to moderate his language and manner and eventually request him to leave the premises.
3:3 The Shop is located in a very multi-racial locale in inner City Dublin and the Shop owner relies for a lot of his trade from non Irish persons. To suggest in this context that he had behaved in a loud racially aggressive manner to a Polish person was a nonsense allegation.
3:4 The CCTV facility in the Shop has a limited memory capacity and automatically rewrites itself after a limited number of days. By the time the Complainant made his complaint, some 16 days post the events, the CCTV had rewritten over the day in question. It was not a question of the Respondents refusing to provide the CCTV images.
3:5 The claim is frivolous and/or vexatious and should be dismissed under Section 22 of the Act.
4 Conclusions /relevant Law
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated.
Section 3(2) provides that: as between any two persons, the discriminatory grounds ... are ... (h) that they are of different race, colour, nationality or ethnic or national origins (the ”ground of race”),”
4.3Section 5(1) provides that:
A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
4.4 The burden of proof is set out in Section 38A which provides that:
" 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."
Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.
The Labour Court continued
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4: 5 The key question in the case at hand is whether or not an act of discrimination, a prohibited act as set out in Section 3 of the Equal Status Acts took place?
4:6 In the case in hand there was considerable conflicting oral evidence from the parties. There were no independent witnesses.
On evaluation of the Oral evidence, the Complainant was, I felt, quite evasive in his answers to questions from the Respondent’s Legal advisor - in particular in regard to the warranty issue and the manner of his approach to same. He admitted openly that the warranty issue had upset him. It appeared to me that this was his primary source of complaint against the Shop. He was evasive in reply to the questions as to whether or not he had passed loud comments regarding the quality of service and warranty cover being offered by the Shop.
The Shop Owner, Mr. L was, I felt, more convincing in his evidence and I, on the balance of probabilities, accepted his version of events.
In particular I noted his comments regarding the multi-racial location of the premises, the oral evidence that the business had a considerable non Irish customer base and the very unlikely prospect of the Shop owner engaging in loud aggressive racist language to a customer in this context particularly when another customer was also on the premises.
In addition, the allegation was based on the Polish nationality - the owner could not have known in advance the nationality of the Complainant. It was agreed that neither party had any prior knowledge of each other.
4:7 Accordingly taking all evidence into account I had to find that the Complainant had failed to establish sufficient prima facie grounds to substantiate a claim of Racial Discrimination on the Racial /Ethnic origin prohibited grounds, as set out in Section 3 of the Equal Status Acts.
5 Decision
5:1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
A case of discriminatory treatment on the grounds of Race & Ethnic Origin, supported by the required level of prima facie evidence, has not been established in this instance.
The claim accordingly fails.
______________________
Michael McEntee
Equality Officer /Adjudication Officer
24th October 2016