EQUAL STATUS ACTS
DECISION NO. DEC-S2017-027
PARTIES
2 Complainants
(Represented by Lees Solicitors)
-v-
A Limerick Spar Shop
(Represented by Una Glazier Farmer B.L. instructed by Stephen J. Daly Solicitors)
FILE NO’s: et-150534-es-14 and et-150535-es-14
Date of issue: 11th of August 2017
1. Dispute
This dispute involves a claim by the complainants
that they were discriminated against by the respondent, on grounds of membership of the Traveller Community when they were refused service at the respondent’s premises on 18th of May, 2014. There is also a claim on the victimisation ground.
2. Background
2.1 The complainants, referred complaints under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 6th of November, 2014. It is alleged that the complainants entered the respondent premises on 18th of May 2014 where a member of the respondent’s staff refused to serve the complainants and accused one of them of ‘robbing’. The complainants submit that the refusal of service took place due to the fact that they are members of the Traveller community.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 12th of January, 2017 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 12th of April, 2017.
2.3 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 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainants submit that
they entered the respondent’s premises on 18th of May 2014
one of them, complainant A, was carrying a can of coke which he had bought in the chip shop across the road before entering the shop,
the complainants picked out a packet of sweets and a pack of chewing gum in the respondent shop and complainant B proceeded to the counter to pay for the items while complainant A left the shop,
a member of the respondents staff spoke to complainant B when he approached the counter and alleged that the other complainant, complainant A had ‘robbed’ a can of coke,
the respondent then refused to serve the complainant telling him that “ he and his type are wanted no place and you are not wanted here either”,
this amounts to discrimination on the ground of membership of the Traveller community.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainants entered the respondents shop on 18th of May 2014,
they walked to where the mineral fridges are and as they walked back up to the counter one of them opened a can of coke and drank from it, he then threw a pack of chewing gum on the counter but then left the shop with it before the respondents Shop assistant, Ms. D had a chance to scan it in,
the other complainant had opened a pack of sweets and was eating them and approached the counter to pay,
the shop assistant Ms. D proceeded to ring in the pack of sweets, the chewing gum and the can of coke assuming the second complainant was paying for all of them,
the complainant told Ms. D that he was not paying for the can of coke and when she questioned him as to why he was paying for the sweets and the chewing gum which his friend had left with, but not the can of coke he replied “that’s your problem go after him if you like”,
the complainant never gave any explanation as to why he was not paying for the can of coke and so Ms. D proceeded to ring up the sweets and chewing gum and did not charge for a can of coke,
the complainant paid for his items and Ms. D told him that he should not come into the shop again because of his bad attitude and aggression,
Ms. D did not make any reference to the Traveller community and did not know that the complainants were members of the traveller community,
the complainant left the shop but returned a few minutes later with the other complainant and started shouting and abusing Ms. D from the door of the shop at which point she threatened to call the guards, she phoned her boss and when he arrived at the shop the complainants left,
the complainants had been served in the shop on a number of occasions before this incident and were served without issue.
5. Preliminary issue – Notification
5.1 The respondent at the hearing submitted that the ES1 notification was submitted outside of the prescribed time limits.
5.2 Under Section 21(2) of the Equal Status Acts, it is required that a complainant must notify the respondent in writing of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. Under the Acts the notification must do all of the following:
(i) be in writing
(ii) give details of the nature of the complaint
(iii) state the complainant's intention to seek redress under the Equal Status Acts if there is no satisfactory response.
5.3 Section 21(3) of the Acts provides that, on application by a complainant, the Director of the Equality Tribunal may for reasonable cause, direct that the notification period of 2 months be extended to not more than 4 months. Exceptionally, where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.
5.4 Section 21 (2)(a) of the Equal Status Acts, 2000 - 2015, states that
"Before seeking redress under this section the complainant-
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where 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.”
5.5 Section 21(3)(a) of the Equal Status Acts, 2000 - 2015, states that:
"On application by a complainant the Director may-
(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or
(ii) exceptionally, where satisfied that it is just and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,
and where such a direction is given, this Part shall have effect accordingly."
5.6 The complaint was submitted to the Tribunal on the 6th of November, 2014 referring to an incident which took place on 18th of May, 2014. The respondent submits that the ES 1 notification form was never sent to the respondent but a letter of notification of intention to take a complaint was sent to the respondent on the 2nd of October, 2014 almost 5 months after the incident is alleged to have taken place. Thus the notification did not comply with the notification time limits as set out in the Acts.
5.7 Section 21(3) of the Acts provides that, on application by a complainant, the Director may for ‘reasonable cause’ direct that the notification period of 2 months be extended to not more than 4 months or ‘exceptionally’ where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.
5.8 The notification in this case was sent more than 4 months after the most recent date on which the Complainant alleges the discriminatory conduct occurred. In accordance with Section 21(3)(a)(ii) the Complainant must show exceptionally, that it is fair and reasonable to disapply the time limit.
5.9 The complainants’ representative at the hearing submitted that they had issued a letter to the respondent on 21st of May 2014 setting out the details of the incident which had taken place on the 18th of May 2014. The complainant’s representative acknowledges that the ES1 notification form was not sent to the respondent but submits that this letter of the 21st of May, 2014 satisfies the notification requirement under Section 21(2). The letter of 21st of May 2015 was submitted in evidence. In ascertaining whether this letter complies with the requirements of Section 21 (2)(a) I must be satisfied that it sets out
(i) the nature of the allegation, and
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.”
In examining the letter in question it is clear that the letter of 21 May refers to the incident and provides details of the incident of 18th of May 2014 and states that the complainants are requesting an immediate apology in relation to the matter. The letter of 21st of May sets out the details of the incident of 18th of May but makes no reference to discrimination or to the Traveller community ground or to discrimination on that ground. In addition the letter of 21st of May 2014 does not make and reference to the Equal Status Acts or to seeking redress under the Equal Status Acts.
5.10 The complainants submit that they sent a further letter to the respondent on 1st of September, 2014 which stated that legal proceedings would be inevitable if no response was received to the 21st of May letter. It is submitted that these letters amount to notification for the purpose of the act. This letter of 1st of September, 2014 again made no reference to discrimination or to the Traveller community ground or to discrimination on that ground. In addition the letter of 21st of May 2014 does not make and reference to the Equal Status Acts or to seeking redress under the Equal Status Acts.
I am satisfied that these letters do not amount to notification for the purposes of the Acts and do not meet the requirements of a notification as prescribed under Section 21 (2).
5.11 The complainants advised the hearing that they issued a further letter to the respondent on the 2nd of October, 2014 which specifically refers to discrimination on grounds of membership of the Traveller community and which states that the complainants intend to seek redress under the Equal Status Acts. The complainants submit that this meets the notification requirement specified in the Acts. I am satisfied that the letter of the 2nd of October 2014 was the first formal notice issued to the respondent which referred to a complaint of discrimination on grounds of membership of the Traveller community and to the intention to seek redress under the Equal Status Acts. This letter was issued on the 2nd of October, 2014 almost 5 months after the date of the incident.
5.12 The Equal Status Acts require that the notification must be sent within 2 months of the incident and that this 2 months requirement can be extended to 4 months where reasonable cause can be shown for the delay in submitting the notice outside of the 2 months but within 4 months. In this case the notice was sent outside of the 4 months so the only recourse open to the complainant is ‘exceptionally’ where satisfied that it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction in accordance with Section 21(3)(a)(ii).
5.13 The phrase in Section 21(3)(a)(ii) "exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so ..." sets a higher test than would be set by phrases such as "with reasonable cause" or "in exceptional circumstances".
Therefore I must be satisfied that the case is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to that decision I am required by section 21(3)(b) to take into account the extent to which the respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint.
5.14 In this case the complainant has not provided any reason for the delay in sending the notification but instead seeks to rely on the assertion that the letters of 21st of May 2014 and 2nd of September, 2014 meet the requirements of notification under the Act. The complainants at the hearing also submitted that the respondent had not raised the issue of the notification requirement until now and that it should have done so prior to the hearing. The complainants went on to state that the letter of 21st of May 2014 was seeking an apology as the complainants had no desire at that stage to litigate the matter. This statement would seem to contradict the complainants’ earlier assertion that the letter of 21st of May, 2014 amounts to notification of a claim under the Equal Status Acts.
5.15 In considering this matter I also note that that it was the complainants’ solicitor who issued the letter to the respondent on the 21st of May 2014 and that the complainants were at all times legally represented and had the benefit of legal advice within 3 days of the incident taking place.
5.16 Taking all of the foregoing into consideration I cannot justify dispensing with the notification requirement in the present circumstances. The complainants in this case have not provided detailed exceptional circumstances that both justify and explain the delay in notifying the respondent of the alleged discrimination and in the circumstances the reasons provided cannot be considered exceptional. I am satisfied that the circumstances surrounding the serving of notification on the respondent do not amount to ‘exceptional’ circumstances. I am, therefore, not empowered under the Acts to dispense with the notification requirement. Furthermore, I am satisfied that the notification requirements set out in S. 21 (2) of the Acts, were not complied with, and accordingly, I find that the Commission has no jurisdiction to investigate the within complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all of 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. I find that
(i) the complaint of discriminatory treatment on grounds of membership of the Traveller community and on grounds of victimisation was notified outside of the statutory time limits, and
(ii) the Commission lacks jurisdiction to investigate this matter as the notification requirements set out in S. 21(2) of the Acts were not properly complied with.
___________________
Orla Jones
Adjudication Officer/Equality Officer
11th of August 2017