Complainant

Respondent

Parties

Aideen Roche

JD Sports

Representatives

William Egan & Associates, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00015709-001

09/11/2017

The complainant entered the respondent shop on June 22nd, 2017 accompanied by two friends.

One of her friends, who was walking in front of her heard a shop employee refer to the complainant as ‘a Traveller’.

The friend turned to the complainant, who had been making a telephone call, to report what she heard. The friend gave direct evidence to this effect at the hearing.

The complainant asked her to confirm who had called her that and then approached the group of the respondent’s staff which included the person who had been overheard to make the remark.

The complainant asked ‘who called me that?’

A woman employee in the group apologised for the remark although it is not clear whether she had heard it or was just making a general apology for the offence that was taken.

By this time, the person who uttered the remark had left the immediate vicinity and another male staff member in the group denied that the remark was, or could have been made by the person against whom it was alleged, but nonetheless said ‘sorry for that’ and wished them ‘Happy Shopping’.

The complainant felt that this latter comment was made in a sarcastic way.

The person alleged to have made the remark returned to the scene and denied that the remark had been made.

The complainant, who felt hurt and humiliated left the shop and raised it later that day with the respondent by email. She did not get a reply.

The following day she put a message on the respondent Facebook page which did get a reply but it appeared to her to be a generic apology as it apologised for ‘gaps in service’.

The complainant submits that the identification of her as a traveller contained an imputation that she was not to be trusted in the shop and needed to be watched from a security point of view and is therefore, prima facie, discriminatory.

She had entered the shop, attracted by a sale which was being promoted, but had to leave following this imputation of untrustworthiness.

She is not, in fact a member of the traveller community but was subjected to less favourable treatment on the basis of the respondent’s imputation that she was, and that she would conduct herself in a way that required supervision.

The respondent did not attend the hearing. No explanation was offered for the failure to do so.

I accept the evidence (of the witness) that the reference to the complainant as ‘a traveller’ was made. Her evidence was credible and not contradicted by the respondent at any stage (in their communications prior to the hearing).

The respondent failed to reply to the first email from the complainant, did not reply to Form ES 2 (proof of posting was provided) and failed to attend the hearing itself.

This reflects a degree of disrespect for the legal process, and for the complainant (who was after all a customer) which is surprising and unacceptable.

The issue to be decided is whether the act complained of meets the definition in Section 3 (1) (a) of less favourable treatment.

The purpose of the Act is to prohibit discrimination, and specifically, less favourable treatment of a person under the protected categories.

The question here is whether the remark, which I accept was made, represents ‘less favourable treatment’.

This is a relatively easy issue to assess by reference to a simple question. Would members of the respondent staff routinely comment on the nature of customers entering its premises?

As one assumes they have more to be doing and would not, why did they do so in this case?

There can only be two explanations. The first is that it was a casual, innocent comment on the complainant based on her appearance or some other aspect of her demeanour.

The second is that it was by way of a warning to his co-workers to pay attention to her while she was in the shop, presumably from a security point of view.

I dismiss the first explanation. It defies common sense. There is no particular reason to make a comment on any customer, other than perhaps a celebrity, a relative or some such unusual circumstance.

The second is the much likelier explanation. The prejudgement that a traveller, or a person taken to be a traveller is someone to whom special attention must be paid illustrates the very purpose for which the Equal Status Act was enacted.

A retail, or any business is perfectly entitled to pay special attention to persons who might represent a security threat where they have some, prima facie basis for believing them to be so.

What they may not do is tarnish an entire protected category under the legislation with the pre-judgement that they require some sort of special treatment or monitoring; in this case amounting to less favourable treatment under the Act.

Secondly, can the simple uttering of the remark be said to represent less favourable treatment?

Without doubt. When the remark was brought to the attention of the complainant she was sufficiently, and understandably affected by it to the point that it caused her to leave the premises which she had entered with a view to making a purchase.

It could hardly have had any other affect once it was brought to her attention.

Accordingly, the comment represents an act of less favourable treatment in breach of the Act.

I uphold complaint CA-00015709-001 and award the complainant €750.00.

Discrimination, alleged membership of protected category, retail outlet.