EQUAL STATUS ACTS
DECISION NO. DEC-S2017-038
PARTIES
Zintis Borodkins
and
Boots Retail Ireland
(Represented by Miley and Miley)
Reference: ET-153605-ES-15
Date of issue: 13 November, 2017
HEADNOTES: Equal Status Acts – Race – harassment
Dispute
This dispute concerns a claim by Mr Zintis Borodkins that he was discriminated against by Boots Retail Ireland on the grounds of his race contrary to section 5 of the Equal Status Acts.
1.2 The complainant referred his claim against the respondent to the Director of the Equality Tribunal under the Equal Status Acts on 11th February 2015. On 1 August 2017 in accordance with her powers under section 25 of the Equal Status Act 2000 to 2014, the Director then delegated the case to me, Shay Henry, 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 20th September 2017.
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 15 January 2015 the complainant and his wife were shopping in Boots Chemist in Letterkenny. They were looking at baby items and discussing details in the Russian language. The Complainant states that he was speaking loudly due to poor hearing and noticed other shoppers staring. They were approached by the store manager who said ‘there are cameras here’ and ‘we are watching you’ and ‘if you steal something we will call the Garda and you will be prosecuted’. The complainant’s wife asked why the manager was picking on them and no other customers. The manager replied that she was alerted by another customer. The complainant’s wife offered to let the manager to check her bag. A male assistant joined and told the complainant that he had been told by another shopper that the complainant’s wife was putting items into her bag. He apologised if this information was wrong. The complainant decided to leave and as they moved towards the exit the manager and another female assistant stood at either side of the door increasing the embarrassment and humiliation of the complainant.
3 Respondent’s Submission
3.1 On 15th January 2015 a member of the public approached the dispensing chemist in the Respondent’s shop and informed him that he had seen a female shopper placing shop products in her bag. The customer identified the female shopper and the man accompanying her as the complainants.
3.2 The Store Manager approached the two shoppers and offered assistance to the female who declined. The Manager stated that CCTV cameras were in place in the store and that any irregular matter should be rectified immediately in-store rather than calling the Gardaí.
3.3 At this point the complainant enquired in a loud voice as to why he and his companion were being spoken to and no one else in the store. The dispensing chemist then joined and explained that he had received a report from a member of the public regarding a female shopper placing products into her bag. He stated that perhaps the person had been mistaken and apologised.
3.4 When the complainant was leaving the manager, who was standing at the front of the store, apologised for any misunderstanding.
3.5 The respondent was concerned that if something had been taken and the complainant had left the store that the matter would have to be referred to the Gardaí. This was the reason she made the comments to the complainant. Her actions were the normal practice in the store.
4 Conclusions
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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.
The complainants submit that they felt harassed in the Store because of their race. 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.
4.2 The respondent is a provider of a service in that it provides goods to be purchased. The complainant submits that the actions of the respondent created a degrading atmosphere for himself and his wife.
4.3 While there is some dispute in relation to minor issues the essential facts are not disputed, although the respondent’s manager denies that she was aware of the complainants’ nationality or race until after they had spoken.
4.4 I accept that the store manager had genuine security concerns and that she believed she was acting appropriately in the circumstances. However I find that she over-reacted to the situation and I do not accept that an indigenous Irish person would have been dealt with in the same way. I note that the manager was unaware of any formal policy or standard operating procedure of the respondent in relation to the appropriate response/action to be taken in an instance such as this. I would expect that any such procedure would include respect for the privacy of the customer which did not happen in this case.
4.5 The respondent manager stated that she did not know the complainant was not Irish. I accept that the complainant was not personally known to her and she therefore did not know it as a matter of fact before her initial contact. However, it must have been evident immediately on the initial contact that the complainant was not an indigenous Irish person. I do not accept that an indigenous Irish person would have been dealt with in the same way and I conclude therefore that the complainant has successfully made a prima facie case of discriminatory treatment on the grounds of race and that the respondent has not adequately rebutted this claim.
5 Decision
5.1 I find that the complainant has raised a prima facie case of discrimination which has not been rebutted by the respondent. The complainant therefore succeeds and I award him 1,000 Euros in compensation for the upset and humiliation suffered.
____________________
Shay Henry
Adjudication/Equality Officer
13 November, 2017.