EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-057
PARTIES
Lidia Adam
(Represented by John Scott BL,
instructed by Howard Synnott Solicitors)
-AND-
Angelo Bridal
File Reference: ES/2014/0048
Date of Issue: 28th September 2016
1. DISPUTE
1.1 This dispute concerns a claim by the Complainant, that she was refused access to a Bridal Shop in Dublin and further, that she was harassed by a staff member on the grounds of race, contrary to Sections 3(1), 3(2)(h), 5 and 11 of the Equal Status Acts 2000-2015 (hereinafter also referred to as ‘the Acts’).
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st February 2014, an ES1 Notification having been sent to the Respondent on 6th November 2013 and the subject-matter of this complaint arising on 18th September 2013. On 5th April 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Aideen Collard, an Adjudication Officer / Equality 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 15th April 2016. Written submissions had previously been submitted on behalf of the Complainant who was represented and gave evidence along with her husband. The Respondent had never engaged with the Equality Tribunal / WRC in relation to this claim or submitted any written submissions or documentation notwithstanding requests for same on 24th June 2014, 19th February 2016, 22nd March 2016 and 30th March 2016. There was no attendance on behalf of the Respondent at the hearing and no application for an adjournment had been made. Before proceeding to hearing, I satisfied myself that all correspondence had been sent to the correct company address and there was no reasonable excuse for the non-appearance on behalf of the Respondent. All oral and written evidence presented has been taken into consideration in my decision. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant confirmed that she was of Roma ethnicity but had been living in Dublin, Ireland with her husband and family since 1999. Although she does not wear traditional dress, she is still identifiable as a member of the Roma community. She is employed by a Charity and confirmed that neither she nor any member of her family had ever come to any adverse attention with any authorities during their time in Ireland. Nor had she experienced any racial discrimination owing to her ethnicity previously.
2.2 The Complainant outlined the background to this complaint and confirmed that she was shopping around for a wedding dress for her daughter’s impending marriage. On 18th September 2013, she telephoned Angelo Bridal Shop at 38 Dorset Street Lower, Dublin 1 to make an appointment for her daughter to view wedding dresses at 4.30pm that day. She confirmed that the Shop required a pre-appointment to view the wedding dresses. A female member of staff took her name and confirmed an appointment. She attended at the Shop at the appointed time with her husband, daughter and her daughter’s fiancé and rang the doorbell. She described seeing a female member of staff (hereinafter ‘staff member’), whom she presumed to be the same person she had spoken to earlier. The staff member appeared to be alone in the Shop. She could clearly see the Complainant and her family through the Shop window but ignored them so the Complainant rang the doorbell again. The staff member gave them a dismissive sign with her hands and refused to open the front door so that they could enter the Shop. Thinking there was some confusion, the Complainant rang the number for the Shop on her mobile to explain why they were there and that they had made an appointment. She could see the staff member answer the phone. She gave her name and confirmed that they had an appointment. The staff member replied that she realised that but that she could not let them into the Shop. When the Complainant asked why she would not let them, she said it was because they were ‘gypsies’, and that she was afraid of them as they looked dangerous. The Complainant responded by saying: “Excuse me, I am working and have a family here in Ireland and have never had a problem with the authorities so why are you not letting me in?” However the staff member promptly put the phone down on her. The Complainant describes how she and her family were left in a state of shock and disbelief, her voice was trembling and she was on the verge of tears.
2.3 The Complainant said that she then saw the staff member open the door to a young white couple who appeared to be Irish. They had been outside when the Complainant and her family were being refused entry and would have overheard the conversation. She said that the woman looked surprised but she did not approach her as she was so embarrassed and ashamed by the refusal to allow them entry. The Complainant and her family remained there a few minutes in a state of shock before trying to phone the Shop again. The same staff member answered the phone again. When the Complainant asked to speak to a manager, she said words to the effect that: “No, I am the boss and my decision is final.” The couple were still in the Shop at that time. The Complainant asked her how she knew she was a gypsy and the staff member replied that it was by the way she looked. The Complainant confirmed that she was from Romania. The staff member dismissed her with words along the lines of: “Don’t touch my bell or the building again and don’t come back again.” The Complainant and her family left in a state of shock and upset at what had just materialised. The Complainant’s husband confirmed her account of events.
2.4 The Complainant subsequently purchased a wedding dress for her daughter elsewhere. She felt that in refusing her entrance to the Shop, the staff member in question had treated her less favourably than her white Irish counterparts based upon assumptions around her physical appearance and she was therefore discriminated against on the grounds of race. She found the whole ordeal humiliating and degrading. Since this incident, she described feeling very apprehensive when in any shop, glancing over at security guards as if she is continually under a cloud of suspicion and may be removed at any time. Owing to the hostile manner of the refusal, she was also subjected to racial harassment within the meaning of the Acts. Counsel for the Respondent also referred to applicable authorities in support of this claim.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE
3.1 As no documentation or written submissions were submitted on behalf of the Respondent and there was no appearance on its behalf at the hearing, no evidence was proffered in defence/rebuttal of this claim.
4. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION / EQUALITY OFFICER
4.1 The issue for my decision is whether the Complainant was discriminated against on the grounds of race in relation to accessing the Respondent’s Bridal Shop and further, whether she was harassed on the grounds of race. The facts adduced must be assessed in relation to the relevant legal provisions. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..." Section 3(2)(h) defines the discriminatory grounds of race as arising in circumstances when as between any two persons “that they are of different race, colour, nationality or ethnic or national origins." In relation to the disposal of goods and provision of services, Section 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” In relation to harassment, Section 11(1) provides that “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 of 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” Section 11(5)(a) provides that “references to harassment are to any form of any unwanted conduct related to any of the discriminatory grounds and … 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”.
4.2 Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.
4.3 There is no question that although by appointment only, access to a Bridal Shop constitutes a service to the public within the meaning of Section 5(1) of the Acts. The precise role held by the person who dealt with the Complainant is irrelevant as service providers are legally responsible for the discriminatory actions of their employees and agents under the vicarious liability principle provided by Section 42.
4.4 I found the Complainant to be an impressive witness and the detailed evidence of both her and her husband to be wholly credible in relation to the circumstances giving rise to this complaint. I am further satisfied that they are clearly identifiable as members of the Roma community. The evidence in relation to the Shop Assistant allowing the white Irish couple into the Shop whilst refusing the Complainant and her family entry at the same time provides an excellent actual comparator leaving me in no doubt that she was treated less favourably when accessing the Shop on the grounds of her Roma ethnicity. Whilst I fully appreciate the difficulties faced by retailers, it is important that staff members are aware of their duties under the Acts and each situation is handled appropriately. Having explained who she was and that she lives and works in Ireland and has never had any difficulty with the authorities in Ireland, it was wholly inappropriate for the staff member to uphold refusal of entry to the Shop in such an offensive manner. Given that there was other people present in the Shop, it is highly improbable that the refusal was based upon fears for her safety. Arising from the humiliating manner in which entry was refused in the presence of the couple and her family, I am satisfied that this had the effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment and I have no difficulty in finding that this constitutes harassment on the grounds of race.
5. DECISION
5.1 I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of both discrimination and harassment on the grounds of race, neither of which have been rebutted by the Respondent.
5.2 In accordance with Section 27 of the Acts, I order the Respondent to:
(a) Pay the Complainant €2,500 in compensation in respect of the finding of discrimination on the grounds of race and €2,500 for harassment on the grounds of race totalling €5,000. This award is arrived at having regard to the seriousness of the discrimination imposed and the humiliating effect on the Complainant which continues to remain with her. This award is redress for the infringement of the Complainant’s statutory rights and therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(b) Review its policy and undertake training and/or training of its staff to ensure that they are aware of their legal obligations under the Equality Acts with particular reference to the race ground.
____________________
Aideen Collard
Adjudication / Equality Officer
28th September 2016