ADJ-00016329

Complainant

Respondent

Parties

Maciej  Skiba

Tesco Ireland Ltd

Representatives

EamonnO'HanrahanE.M. O'Hanrahan Solicitors

Nikki Andrews BL instructed by Catherine Collins Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00021196-001

16/08/2018

The complainant is a Polish national and he is claiming that he was discriminated against contrary to the Equal Status Act 2000 on the grounds of his nationality when he was refused a service in the respondents shop because he didn't have an acceptable form of age identification.

The complainant said that, on the 11th May 2018, he went into the respondent's supermarket with his fiancée to do some shopping and they decided to buy a bottle of vodka as they were celebrating the anniversary of their engagement.  At the self-service check-out he was asked by the shop assistant for age identification and he produced his Polish national identification card which had his age and photograph on it. The shop assistant refused to accept the card because it was not an acceptable form of age identification to purchase alcohol.  He went to the car and got his Irish driver’s licence which was an acceptable form of ID and he purchased the bottle of alcohol.

The complainant said that he was discriminated against because he is Polish, and the shop would not accept his Polish Identity Card. He asked to speak to the shop manager and was directed to customer service. They were given the company's policy on age identification to purchase alcohol and informed that the shop assistant was right as national identity cards are not an acceptable form of identification. He pointed out that the Polish national identity card is valid document for travel around Europe instead of a passport and it has his social welfare number and date of birth on it. Furthermore, the card is both in English and Polish.

It was submitted by the complainant solicitor that the policy not to accept Polish Government issued national identity cards is discriminatory and breaches the Equal Status Act. He submitted that while both parties were well over the legal age to buy alcohol, the complainant did not object to being asked for ID to buy alcohol. He said that the respondent only accepts Irish and UK driving licences all passports and Garda ID as a form of age identification to buy alcohol. He that people from the European Union and Switzerland are entitled to travel within Europe on their national ID cards.  He submitted that people from Europe who travel legally into this country on their National Identity Cards are incapable if they do not have a passport of fulfilling the respondent’s age ID policies. It was submitted that the complainant was indirectly discriminated against by the respondent on the nationality ground.

The respondent denies that the complainant was discriminated against on the nationality ground in relation to access to a service. The complainant was attempting to purchase alcohol and he was requested to provide identification to prove his age. The respondent submitted that any person can purchase intoxicating liquor in the store provided that person is at least 18 years of age, the legal age to purchase alcohol. Where there is a doubt about a customer’s age, the respondent may refuse to provide that person with a service unless they are satisfied that person is at least 18 years of age. The company accepts either the Garda age card, a passport, an Irish driving licence and a UK driving licence as proof of age. The Polish national identification card presented to the shop assistant as proof of age is not an acceptable form of identification in the respondent's store.

The company operates a “Think 25 Policy” to ensure compliance with the Intoxicating Liquor Act so that customers under 18 years old do not purchase alcohol. All staff are trained about the policy and the policy provides that only the Garda age card, a passport, an Irish driving licence and a UK driving licence are acceptable forms of age identification. It was submitted that none of the documents required by the respondent are discriminatory in relation to nationality.

Under Section 31(4) of the Intoxicating Liquor Act 1998, as amended the only defence to a criminal charge of selling alcohol to a minor is that the retailer sought and obtained a Garda Age Card or that the sales representative, “had other reasonable grounds for believing that such person was over the age of 18 years.”

As a retailer employing a large number of staff, the respondent has an obligation under the Act to ensure that no circumstances arise in which alcohol is sold to a minor person. It was submitted that “reasonable grounds” is a subjective concept and it would be impossible to effectively train staff using this threshold.

The respondent and staff face severe penalties if it is found to have sold intoxicating liquor to a person under the age of 18. The Intoxicating Liquor Act, as amended, makes it a strict liability offence which can only be defended by proving that a Garda age card was produced by the person to whom the intoxicating liquor was sold. In determining how best to ensure compliance with this legislation the respondent has to balance the potential penalties against the potential inconvenience to customers that would result in a Garda Age Card as the only form of identification permitted.  In an effort to improve the customer experience, the respondent has chosen to accept forms of identification other than the Garda age card, and trained staff in how to identify and validate these additional forms of identification which are Irish and UK driving licences and all passports.

I was referred to the Service Directive (2006/123/EC) at Article 20(2) which states:

 “Member States shall ensure that the general conditions of access to a service, which are made available to the public at large by the provider, do not contain discriminatory provisions relating to the nationality or place of residence of the recipient, but without precluding the possibility of providing for differences in the conditions of access where those differences are directly justified by objective criteria.”

It was submitted that it follows that, where the conditions of access to a service do discriminate on the grounds of nationality, such discrimination is permissible, or it can be justified by objective criteria.

Recital 95 of the Services Directive provides that:

“The principle of non-discrimination within the internal market means that access by a recipient, and especially by a consumer, to a service on offer to the public may not be denied or restricted by application of a criterion, included in general conditions made available to the public, relating to the recipient's nationality or place of residence. It does not follow that it will be unlawful discrimination if provision were made in such general conditions for different tariffs and conditions to apply to the provision of a service, where those tariffs, prices and conditions are justified for objective reasons that can vary from country to country, such as additional costs incurred because of the distance involved or the technical characteristics of the provision of the service, or different market conditions, such as higher or lower demand influenced by seasonality, different vacation periods in the Member States and pricing by different competitors, or extra risks linked to rules differing from those of the Member State of establishment. Neither does it follow that the non-provision of a service to a consumer for lack of the required intellectual property rights in a particular territory would constitute unlawful discrimination”.

It was submitted that discrimination on the grounds of nationality can be justified by reason of additional costs incurred because of the technical characteristics of the provision of the service.

The respondent referred to a study published in 2016 the by the European Commission concerning national identity cards. The report highlighted the lack of harmonisation of national identity cards and stated that it creates some obstacles for the enjoyment of EU citizens’ rights.

Given this lack of harmonisation of national identity cards, it was submitted that it is abundantly clear that it would take a substantial amount of time and expense for the respondent to create and maintain a register of every national identity card and to train all of his staff in how to identify and validate each and every national identity card issued across the EU/EEA. The time and expense would create additional costs which would be incurred because of the technical characteristics of the provision of the service.

Accordingly, insofar as it is argued that the respondent’s policy discriminates on the grounds of nationality which the respondent rejects, any such discrimination is objectively justified and according it is not unlawful by reason of additional costs incurred because of the technical characteristics of the provision of the service.

The complainant, who is Polish national, claims that he was discriminated against on the race ground in relation to a service provided by the respondent contrary to the terms of the Equal Status Act 2000.

Section 2 of the Equal Status Acts as amended states that:

“''service'' means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a) access to and the use of any place,

(b) facilities for --

(i) banking, insurance, grants, loans, credit or financing,”

Section 3(1) provides: For the purposes of this Act discrimination shall be taken to occur— (a) 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) 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 favourably 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

3(1)(c) “where an apparently neutral provision puts a person of a particular religion 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”

 3(2) “As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:…………………

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

Section 5(1) states:

"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."

The burden of proof is set out in Section 38A which provides:

38A. -- (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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

I will now examine the evidence to see if the complainant has established a prima facie case of discriminatory treatment on the race ground. To establish a prima facie case of discrimination the complainant must establish that he is covered by one of the discriminatory grounds, that he was subjected to specific treatment and that he was treated less favourably than a person of a different nationality has been or would have been treated in similar circumstances.  The complainant is a Polish national.

It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. The complainant produced his Polish National Identity card to verify his age for the purposes of purchasing alcohol and the sale was refused because it was not an acceptable form of identification even though the card had the complainant’s photograph and his date of birth and was written both in English and Polish. The respondent’s “Think 25 Policy” in which all staff are trained states that the respondent will only accept the Garda Age Card, an Irish or UK driving licence and all Passports. It is the complainant’s contention that not to accept a Polish National Identity card as proof of age is indirectly discriminatory against him because the card which has all his details is widely used and it is legal to travel throughout Europe on this card.

The “apparently neutral provision” the complainant had to comply with was not to have a National Identity Card instead of a Passport to prove his age. Given that Polish citizens are required to have Government issued National Identity Cards and these cards are valid travel documents instead of a Passport within the EU/EEA, it is more likely that the requirement to have a Passport as proof of age would impact more heavily on Polish customers than Irish customers.  While the complainant has not produced any statistical evidence to support this contention it is obvious that if a person is required to have a Government issued National Identity Card which is a valid travel document that they may not have a passport. I am satisfied therefore that the requirements impacted disproportionately on customers of the complainant’s nationality than it did on the respondent’s Irish customers and this raises an inference of discrimination in accordance with S. 38 of the Act. I find therefore that the complainant has established a prima facie case of indirect discrimination on the race ground. 

Objective Justification

It is a matter for the respondent to rebut the prima facie case of indirect discrimination and to objectively justify the requirements. It is a defence for the respondent under S. 3(2) if it can be established that the measures put in place are objectively justified.  The three limbs to the test are:

(i) whether it’s a legitimate aim (ii) whether the means of achieving that aim is appropriate and necessary.

Therefore, is the provision to exclude National Identity Cards justified by a legitimate aim. The respondent is legally obliged under the Intoxicating Liquor Act 1988 as amended by section 14(1)(b) of the 2000 to ensure that alcohol is not sold to customers under 18 years old. It is a criminal offence and severe penalties can be imposed if there is a breach of the law. The only defence to a criminal charge of selling alcohol to a minor is that the retailer sought and obtained a Garda Age Card or that the sales representative, “had other reasonable grounds for believing that such person was over the age of 18 years.”   The respondent submitted in addition to a Garda Age Card that an Irish or UK driving license and a Passport from any country are acceptable forms of proof of age.  It was argued that given the lack of harmonisation of European National Identity Cards, this form of age identification was not acceptable, and it would take a substantial amount of time and money to train staff in each and every National Identity Card and therefore is objectively justified.  As passports are acceptable age identification document travel documents such as Government issued National Identity Card should also be acceptable documents to achieve the “legitimate aim” of preventing the sale of alcohol to minors.

I note that the Polish National Identity Card is Government issued has the holders age and photograph on it and is bilingual including the English language. The purpose of the respondent’s policy is to ensure compliance with the law and this Government issued document which can be used as a travel document in the EU/EEA Europe provides the information to prove the customers age and is in the English language.  Given that the age is clearly identifiable on the Polish National Identity Card, I am satisfied that the respondent’s policy to exclude the Polish National Identity Card as proof of age is neither appropriate nor necessary to achieve the respondent’s stated aims that is to ensure compliance with the law on the sale of alcohol to minors and therefore is not objectively justified.

For these reasons, I am satisfied that the respondent has failed to rebut the prima facie case of indirect discrimination raised by the complainant.  I find therefore, that the respondent indirectly discriminated against the complainant on the race ground in relation to the provision of a service contrary to Section 3(c) of the Equal Status Act 2000.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

For all the foregoing reasons, I find that the complainant has established indirect discriminatory treatment on the race ground contrary to the Equal Status Acts.

Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified."

Under the above Section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award I have considered the effects the discriminatory treatment had on the complainant.  I note that he had an Irish driver licence which was in his car at the time his National Identity Card was refused for age identification purposes. He was subsequently able to make his purchase of alcohol in the store. Therefore, the effects of the discriminatory treatment were minimal and an award of €200 is appropriate in the circumstances   

In accordance with Section 27(1)(b) of the Equal Status Acts, I order that the respondent, to revise  the list of approved documents for the purposes of age identification,  Government issued National Identity Cards which has a photograph and clearly identifies a person’s age, which can be used instead of a passport for travel purposes within the EU/EEA and are easily readable and are bilingual including the English language.

Equal Status Acts, 2000to 2015, Section 3(1) -  less favourable treatment, Section 3(1)(c) – indirect discrimination, Section 3(2)(h) – race ground, Section 5(1) - access to a service,  prima facie case.