Complainant

Respondent

Anonymised Parties

A Service Station Customer

A Service Station

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011668-001

31/05/2017

The complainant is a member of the travelling community. He attended at the Service Station on 22nd March 2017 and purchased petrol and food. The complainant contends that when he met an acquaintance of his on the premises, a member of staff began shouting at him and he felt he was discriminated against on the basis of his ethnic identity.

Counsel for the respondent raised a preliminary point at the adjudication hearing in relation to the legal entity named in the complaint. The position is that the entity named in the complaint is incorrect and in those circumstances the complaint must fail.

The complainant stated that he was not educated, was unable to read or write and did not understand what was being put forward by the respondent.

In relation to the respondent’s preliminary point I find as follows:

I do not accept the respondent’s preliminary objection. By letter to the Workplace Relations Commission (WRC) dated 26th January 2018, the respondent’s Solicitor submitted that the complaint is frivolous, vexatious and fundamentally misconceived. I find that by its written communication to the WRC, the respondent’s solicitor acknowledged the complaint and requested that its position on the merits of the case be considered. Counsel for the respondent subsequently attended the adjudication hearing and made submissions in relation to the legal entity named in the complaint.

In relation to this issue, I refer to the Decision of the High Court in the case of Capital Foods Emporium Ltd v Walsh [2016] IEHC 725. In that Decision, Barrett J considered whether a party to a complaint who “participates in proceedings to the extent that it acknowledges and accepts that those proceedings were rightly brought against it” can “later allege that the proceedings were not so brought.” In relation to that point Barrett J stated that the maxim Quod approbo non reprobo” (that which I approve, I cannot disapprove) applies.

In the instant case, the respondent’s initial correspondence to the complainant’s representative confirmed that an investigation into the allegations would take place and that the matter would be taken very seriously. The respondent’s solicitor then wrote to the WRC outlining its position in relation to the merits of the complaint. I find that it was unreasonable to subsequently attend at the adjudication hearing and raise further issues in relation to the complaint as submitted.

I am also of the view that a purposive view of the legislation should be applied to this complaint as previously considered in Equality Officer Decision No: DEC-S2011-013; Frances Comerford v Trailfinders Ireland Limited which states as follows:

“The Equal Status Acts is a remedial social statute to be widely and liberally construed. In the long title the 2000 Equal Status Act is expressed to be remedial legislation and as such it is submitted that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327. " As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done."

Having considered the respondent’s submission on this issue, I am of the view that It would make little sense to dismiss the complaint as requested in circumstances where the purpose of the legislation is to assist complainants where a perception of discrimination exists.

On the basis of the foregoing, I find that I can consider the substantive complaint as submitted.

The complainant is a member of the travelling community. He contends that on 22nd March 2017 while in the respondent premises, he was verbally abused by a member of staff. The complainant stated that issues arose when he was in the company of an acquaintance and the van that was being driven by the acquaintance was blocking the petrol pumps out in the forecourt. The complainant stated that he was shouted at by the member of staff and was told to move his van. He also contends that he was told to pay for the petrol before he moved the van. The complainant contends that the interaction with the staff member occurred in the middle of the shop and could be heard by everyone. The complainant stated that he approached the cash register to speak to a member of management about how he had been treated and he was refused the information he sought in relation to the Manager’s name. The complainant contends that he was verbally abused and the member of staff swore at him. The complainant said that the purpose of his complaint was to highlight issues such as these and to make sure that people are treated with the respect and dignity that they deserve. The complainant stated that he was not seeking compensation in relation to the complaint.

The respondent refutes the complainant’s position. The respondent contends that there was no interaction at all with the complainant. The respondent stated that it was the complainant’s acquaintance that was asked to move his van as it was blocking the petrol pumps and a large queue was forming outside while the acquaintance was in the coffee shop area talking to the complainant. The respondent stated that when the acquaintance was leaving the coffee shop, the member of staff told him to pay for the fuel before he moved his van as there was no queue and this would save him from moving the van and then coming back in to pay for the fuel. The respondent contends that it was at this point that the complainant became agitated as how the acquaintance was allegedly being treated by the staff member. The respondent stated that the complainant then approached the cash register and a further interaction took place. The respondent stated that it was the complainant who was behaving inappropriately and was intimidating the staff on the day in question.

The complainant attended the adjudication hearing and was unrepresented. He gave his account of what occurred on the day and when the respondent gave its version of events, the complainant stated that he was leaving the adjudication hearing as the respondent was telling lies and that he had another appointment to attend. I asked the complainant to remain at the hearing as he would be given the opportunity to comment on the respondent’s evidence in due course. Unfortunately, the complainant declined the request and left the hearing.

In relation to the specifics of the complaint, I find as follows:

The complainant stated that he was discriminated against on the grounds of his ethnic identity as a member of the travelling community. He stated that he was verbally abused, shouted at and spoken to in an offensive manner by a staff member of the respondent.

The staff member gave evidence at the hearing of this complaint, although the complainant had left the hearing at this time. The witness stated that she had asked the acquaintance of the complainant to move his van and to pay for his fuel before moving the van as it would be quicker than moving the van and then returning to pay for the fuel. The witness stated that it was only then that the complainant became involved in the matter and approached the cash register in an agitated and angry state. The witness stated that she felt intimidated by the actions of the complainant.

The respondent provided CCTV footage of the incident although as already stated the complainant did not remain at the hearing of his complaint to see the footage and offer any comments on it.

Having reviewed the CCTV footage, I accept the evidence of the witness as credible and honest. The CCTV footage shows the witness asking the acquaintance to move his van and then again shows the witness engaging with the acquaintance before he leaves the shop.

The Law:

Section 3 of the Equal Status Acts 2000 - 2015 defines discrimination as follows:

3(1) For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favorably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)or, if appropriate, subsection (3B),](in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favorably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status(the “civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Burden of Proof:

Section 38A of the Equal Status Acts, 2000-2015 provides as follows in relation to the Burden of Proof:

1.       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 Burden of Proof in cases of discrimination rests initially with thecomplainant. If the Complainant raises facts from which an inference of discrimination can be drawn, the burden of proof then shifts to the Respondent.

The burden of proof is dealt with by the Labour Court in the decision of Southern Health Board v   Mitchell [2001] ELR 201 where it determined that:

“The first requirement is that the claimant must establish facts from which it may   be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The above tests relate specifically to the employment relationship under the Employment Equality Acts, 1998-2015. I find that they are also relevant in relation to the Burden of Proof in complaints under the Equal Status Acts, 2000-2015.

In the instant case, I am of the view that the complainant has not discharged the Burden of Proof as required by the legislation. At best, it appears the complainant took offense as to how his acquaintance had been spoken to on the day and how he was subsequently spoken to when he raised the issue. The witness stated that she had not spoken to anyone in an inappropriate manner. The evidence of the witness and the CCTV footage greatly support the position of the respondent in my view.

Naming of the parties:

I asked the respondent at the hearing if it wished to be named or to be anonymised in the adjudication decision. I was unable to seek the view of the complainant on this issue as he had left the hearing. The respondent stated that its preference would to be anonymised. I am also of the view that the parties to this complaint should be anonymised on the basis that naming the parties would cause negative publicity and unnecessary embarrassment.

Having considered the submissions of both parties to this complaint and the additional evidence adduced at the hearing of this complaint, I declare that the complainant has failed to establish a prima fascia case of discrimination and accordingly the complaint is not well founded.