ADJ-00016331

Complainant

Respondent

Parties

Patrycja  Postolowska

Tesco Ireland Limited

Representatives

EamonnO'HanrahanE.M. O'Hanrahan Solicitors

Nicola Andrews BL instructed by Catherine Collins Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021197-001

16/08/2018

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

The complainant said that she went into the respondent's supermarket with her fiancé and they sought to purchase a bottle of alcohol. They were asked to produce age identification and her fiancé produced his Polish national identification card. The shop assistant refused to accept the card because it was not an acceptable form of age identification to purchase alcohol. The complainant said that she did not produce her Polish ID. Her husband 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 she felt she was discriminated against. They complained to customer service and were given the company's policy on age identification to purchase alcohol. She said that the Polish ID card is valid document for travel around Europe instead of a passport and it has her 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 over the legal age to buy alcohol, the complainants 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 ID cards are incapable if they do not have a passport fulfilling the respondents ID policies. It is 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’s fiancé 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. 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.

It was submitted that the complainant did not attempt to purchase alcohol in the respondent’s store and therefore she could not have been discriminated against on the grounds of her nationality.

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 the 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, is a Polish national, claims that she was discriminated against on the race ground in relation to access to a service 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,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,”

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”

(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 ground of race. In order to establish a prima facie case of discrimination the complainant must establish that she is covered by one of the discriminatory grounds, that she was subjected to specific treatment and that she 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.  I note that the complainant was not subject to specific treatment and was not refused a service in the respondent’s store.  She was with her fiancé who was buying the bottle of alcohol and she was not asked for nor did she produce identification for the purposes of establishing her age. I find therefore that the complainant has failed to meet the test to establish a prima facie case of discriminatory treatment on the race ground.

On the basis of the foregoing I find that the complainant was not discriminated against by the respondent on the ground of race in terms of Section 3(1) and 3(2)(h) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act.

Equal Status Acts, 2000to 2015, Section 3(1) -  less favourable treatment, Section 3(2)(h) – race ground, Section 5(1) - access to a service, no prima facie case.