Complainant

Respondent

Anonymised Parties

Customer

Retail store.

Representatives

Free Legal Advice Centres. Mr Michael Kinsley, B.L.

Representatives from Respondent’s Legal and Compliance Department.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030013-001

01/08/2019

The complainant is a member of the Roma community and is originally from Romania. She alleges that she was discriminated against on the grounds of her ethnicity when the respondent refused her access to their shop on the 7 March 2019.

She submitted her complaint to the WRC on 1 August 2019.

The complainant had an interpreter at her disposal for the hearing.

At the outset the respondent sought an adjournment as the security company against whose personnel the complaint is directed are accepting liability for the actions of the security guard -their employee. Hence the respondent understood that the security company, against whom a separate complaint under the Equal Status Acts has been levelled, would defend the case. Both complaints are based on the exact same incident. In circumstances where the respondent is now expected to defend the case, they require an adjournment. The respondent needs to be prepared. The complainant’s barrister submitted that in order to shift responsibility to the security company, the respondent must prove that that the actions of the security guard were unauthorised, and he did not receive training from the security company. Notwithstanding the disclaimer by the respondent (the security company are accepting liability), the complainant’s representative states that the respondent is still vicariously liable -for the actions of the security guard.

The complainant’s barrister objected to the request for an adjournment given the costs entailed. Given that the respondent was on notice of the hearing and that they had been named as the respondent, the adjudicator decided to proceed with the hearing.

The complainant is of Roma ethnicity and is originally from Romania. A separate complaint in relation to the same incident is being lodged on behalf of her husband.

Complainant’s evidence

The complainant gave evidence that she went to shop in the respondent’s store, on 7 March 2019. She was accompanied by another member of the Roma community While her husband was getting the shopping trolley, she tried to enter the entrance lobby. The security guard stopped and blocked her at the outer, first door. The interaction with the security guard started when the security guard called her “Roma, robbing scum”. The complainant states that she had met him previously in another of the respondent’s stores in 2015 when he refused her entry to that store. He had pushed her then. She understands that this security guard has a prejudice against the Roma community irrespective of their nationality and that he stopped herself and her husband on that basis on 7 March.

This was the first time that the security guard encountered her husband. The security guard denied her husband access to the store. The security guard further accused the complainant’s husband of having stolen something although the couple had not yet even entered the supermarket. The security guard said Romanians are “robbers” to her. He said nothing to her friend, also a Roma person.

The complainant advised that she had never had any difficulties with the Gardai, nor had she ever stolen anything. She works as a housekeeper in a hostel. Sometimes her boss, an Irishman, would accompany her shopping to one of the respondent’s stores.

She states she was not abusive, but angry at being refused admission. She felt humiliated as people had gathered and were observing the situation. She asked to speak to the manager, but the security guard did not ask the Manager to speak to them.

The complainant showed phone footage taken by her husband, of the incident. It showed the security guard standing in front of her, in the lobby within the first and second door, stopping her access to the store, his arms raised. and very heated exchanges.

The complainant confirmed to the respondent’s representative that she had no difficulty with the respondent but had with the security guard assigned by the respondent.

The security company’s legal representative cross examined the complainant who advised that the three Roma persons were standing at the door attempting to enter the store. The complainant was first, followed by her Roma friend and lastly, by her husband. The complainant stated she tried to enter. The security guard said” no, not allowed”. She asked the security guard why. He said, “Romanians are scum”.   The security company’s representative asked if the security guard was inside the first door or outside the first door as he was on a break and smoking. The complainant states he was in the doorway. She did not notice him smoking. His arms were outstretched. In response to a question from the security company’s representative, the complainant denies that the security guard said are you going in or not.

She did not notice a child.

The complainant’s barrister stated that they had sought and been denied video footage. The complainant’s barrister submits that no GDPR issue arise concerning the supply of this material to the complainant.

The complainant’s barrister states that the use of abusive language is legitimate if you believe you are being discriminated against on the basis of your ethnicity.

The last thing she heard before leaving the shop was the security guard saying, “Romanians are no good”. The whole episode took probably 10-15 minutes. There could have been 10-15 people in the vicinity of her.

The refusal of the security man to explain the refusal to allow her to enter the store is further evidence that he did not have a non-discriminatory reason for their refusal of entry. This constitutes less favourable treatment of the complainant based on her ethnicity and contrary to the Equal Status Acts.

In response to a question from her barrister as to why she argued with the security guard, the complainant stated that she wanted a reason why she was being debarred from entering the store. She had never robbed anything before.

The complainant’s barrister objected to the submission of CCTV footage by the respondent after the complainant had completed her evidence as the evidence had not been put to the complainant and the respondent had failed to supply the footage, although requested to do so in the ESI form.

Combined with previous experience, the complainant understands that the respondent’s refusal to admit her to the store was based on her ethnic origin as a Roma.

The complainant’s barrister states that the facts raise an inference of discrimination and the burden of proof shifts to the respondent where

The respondent denied the complainant access to the premises,

The complainant is a member of a protected group,

The respondent failed to return the ESI form, submitted to them on 3 May 2019,

Furthermore, the complainant’s barrister pointed to the lack of evidence of a policy of non- discrimination, or details of training, the absence of information on the number of exclusions and by race. The complainant’s barrister states that the burden of rebutting the inference of discrimination cannot be discharged in the absence of CCTV footage of the incident requested in the ESI form which the respondent has failed to submit.

He asked that the adjudicator to find for the complainant and to make an award that disincentivises such discriminatory conduct.

The respondent stated that the security company are accepting liability for the actions of the security guard. The representative for the security company stated that in relation to section 42 of the Act of 2000 as amended, the security company is a service provider and not an agent.

The respondent denies that they discriminated against the complainant on the grounds of ethnicity.

The respondent contests that the complainant was refused access to the store. The complainant entered the foyer. The respondent accepts that an incident occurred. They have an agreement with the security company and depend on and trust the latter’s expertise as to who gains access to their premises. The complainant was legitimately halted from entering the store by the security company based on her behaviour.

The solicitor for the security company contests that she was refused access to the store. The complainant entered through the first door, called out to the security guard and started arguing based on a previous fight she had had with the same security guard in another of the respondent’s stores in 2015. She started the altercation. At the same time the complainant’s husband banged into a customer with a shopping trolley. The security guard did not use the language attributed to him. The security company stated that they had CCTV footage which could demonstrate what had occurred.

The security guard’s evidence.

The security guard gave evidence that he had been employed by the security company since 2012.

On the evening of 7 March, he was on his break. The witness states that he was to the side of the outer, front door and was not blocking the entrance doorway as alleged. He noticed 3 persons getting out of a van; one male went to get a trolley. The security guard had been smoking and extinguished his cigarette. On arriving at the first door, the other Roma person, the friend, was the first to enter the foyer of the store, followed by the complainant and then her husband. Having accessed the foyer, the complainant came back out to him and made a comment to him. He asked the complainant to behave herself. She was verbally abusive towards him. She made the remark when she was 3- 4 feet within the first door. He cannot remember her exact opening remarks. The complainant then stated to the security guard that she knew him from another of the respondent’s stores. She stated she was “going to sue” them. She then started roaring and shouting at the witness. He had no interaction with the first Roma person. The security guard, by now in the foyer, asked her to leave.

He told the complainant that verbal abuse was not tolerated. At that point the complainant’s husband backed out of the shop, took out his phone and started recording the scene. The complainant asked the witness to get the manager of the store. The complainant called him a “scumbag and a bastard.”

The security guard asked the complainant if she wished to go in or if she wanted to leave.

The security guard noticed a child; she seemed to be afraid. He asked the complainant to move aside. The customer with the child then went into the shop.

On being asked the process for dealing with difficult customers, the witness stated that verbal abuse is not tolerated. The complainant was very aggressive and disruptive. He treats every customer the same regardless of their nationality.

The witness states that he finally put his arm out and said you can go in or go out. No interaction occurred after that. The complainant walked back to the van.

The witness checked the child with autism to see that she was alright.

He halted them from entering the store because of the verbal abuse.

On being asked, he could not recall what exact words triggered his statement you can come, or you can go.

The witness stated that he did not call the manager who does not have time to deal with such incidents, never has dealt with a complaint previously from a shopper and leaves it to the security personnel to handle it. The witness stated that he sent a report of the incident to the security company.

Customer 1’s evidence.

This witness states he saw the security guard speaking to the complainant and the complainant’s husband. The complainant was roaring and uttering profanities at the security guard. Shopper 1 was outside for about 3 minutes trying to get into the store. The complainant’s arms were outstretched. She was blocking people from getting in the door. The complainant’s husband pushed a trolley into him. The security guard told customer 1 that he would handle it.

The security guard was very calm. Customer 1 said he never saw anything like this previously. He was in between the 2 doors. The security guard told customer 1 he could go into the store. Customer 1 did not know what it was about. The complainant ‘s husband did not apologise to him for the trolley incident; he laughed at customer 1. Customer 1 was not present when the altercation started. He shops there 3 times a week. He believes it is out of character for the security guard to exclude anybody.

Customer 2’s evidence.

Customer 2 went with his niece to shop in the store on 7 March. His niece has autism. He saw an obstruction by the complainant. The security guard said go in or go out to the complainant. The complainant was irate. The incident was going on inside the doorway. The complainant was to the left of customer 2. The security guard was telling the complainant to behave herself. The complainant and her husband were roaring and shouting. The complainant’s husband took out his phone and commenced recording. Customer 2, when asked, stated he did not hear the complainant ask to speak to the manager. Customer 2 said he could not get in or out of the store. After the complainant, his wife and their friend had exited the store, the security guard asked him if his niece was ok.

In cross examination by the complainant’s barrister, the witness stated that the complainant was inside the first door, in the foyer. He remembers the security guard asking the complainant to behave herself. The security guard said get in or get out.

Customer 2 confirmed to the complainant’s barrister that he did not know what started the event.

The Acting Head of the respondent’s Legal and Compliance department informed the hearing that they have an agreement with the security company to protect staff and afford dignity to all staff and customers. It is not acceptable to the respondent to admit customers who are being abusive. The respondent does not discriminate against any shoppers on the grounds of race. They have 3 members of staff who are Romanian in the Legal and Compliance Department.

The barrister for the security company denies that any discriminatory conduct occurred. The complainant was not denied access to the store. The complainant had stepped over the threshold, she recognised the security guard, came back out to the entrance of the store and started to complain at him. The security guard then moved into the foyer. The behaviour of the complainant kickstarted the episode. It was based on a previous fight she had had with the same security guard in another of the respondent’s stores which saw the complainant spitting at the security guard in his face. The security guard asked the complainant was she going in or not.

The security company’s solicitor denied that the security guard stated” Romanians are scum”.

I am obliged to establish if the respondent discriminated against the complainant. on grounds of ethnicity and nationality contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000, as amended, in the way they were refused admission to the Store, Glasnevin store on 7 March 2019.

Section 3(1) of the Equal Status Acts 2000-2016 states that “discrimination shall be taken to occurwhere 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 listed in sub- section (2)’.

Section 3(2)(h) of the Act of 2000 as amended specifies the race ground as one of the grounds covered by the Act.

Section 5(1) of the acts 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 complainant contends that she was denied access to the respondent’s store on 7 March 2019 because she is a member of the Roma community and that this constitutes less favourable treatment on grounds of race.

The complainant submitted an ESI form as required by section 21 of the Act as amended. The respondent did not reply.

Correct Respondent

The complainant has made a complaint against the respondent, a retail store, and a complaint has been lodged separately against the security company. The respondent is a provider of goods to the public. The complainant’s barrister argues that the respondent is vicariously liable fit the actions of the security guard.

Although the security guard involved in this incident on the 7 March 2019 was not employed by the respondent, Section 42(2) of the Equal Status Act 2000 states:

“(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”

While the respondent’s representative transferred liability to the security company for the actions of the security guard, they also stated that they confer full authority on the security guards deployed in their store by the security company with whom they have a contract. The respondent’s representative did not quarrel in any way with the actions of the security guard and in fact stood over his decision.

The matter of liability for the actions of a security guard not employed by the named respondent has been addressed in Axinte v Q-Bar DublinDEC-S2005-094. The doorman involved in this incident, was employed by a security company contracted to provide security services for the respondent’s bar. The equality officer relied on section 42 (2) of the Equal Status Act 2000 and concluded that the refusal by a security guard to admit and provide service to the complainant rendered the respondent vicariously liable for the refusal of service. She found on the facts of that case that Mr. Axinte had been discriminated against contrary to the Equal Status Act 2000 on the ground of race by the refusal of service on 27th May 2002.

The liability of a security firm is addressed by Judy Walsh as follows:

“For example, a retailer might have contracted with a firm to provide security staff for its premises. In such a case the security staff would be agents of the retailer”, Walsh, Judy (2012), Equal Status Acts 2000-2011, Discrimination in the Provision of Goods and Services, page 265.

I conclude therefore that the respondent is the correct respondent and is statutorily liable for the actions of the security guard and the company during the incident complained of on the 7 March.

Burden of Proof.

As a preliminary, I am required to establish if the complainant has met the requirements of S38A of the Acts which sets out the burden of proof which applies to a claim of discrimination under the Acts. It requires the complainant to establish, in the first instance, facts from which the discrimination alleged -in this instance the denial of access to the store-may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

The Labour Court commented in Cork City Council v McCarthy EDA/21/2008 as follows “

“it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The facts advanced to raise an inference of discrimination are as follows:

the complainant is a member of a protected group,

she was stopped by the respondent in accessing the provision of goods,

Non- Roma customers were admitted to the shop demonstrating a difference in treatment,

ES2 response to the complainant’s ESI form was not provided.

I accept that the complaint has shifted the burden to the respondent on the basis of the above elements. The respondent must demonstrate that their action in stopping the complainant accessing goods was driven by factors unconnected with her ethnicity.

It is agreed that there was an incident on the 7 March. It is agreed that at the very least the complainant’s passage into the store was stopped if not outright denied. It is accepted that the complainant used obscenities. It is agreed that there was a previous incident in 2015 between the complainant and the security guard where in response to an allegation that on that occasion she spat in his face, she replied “do you have proof of that”? What is contested is the basis for the security guard initially denying the complainant access to the store to acquire goods with the complainant arguing that it was her ethnicity and the respondents submitting that it was her behaviour.

On balance, the evidence supports a developing incident with the complainant crossing the threshold, entering the foyer of the store and coming back out to make a statement to the security guard which he describes as abusive. The evidence leads me to conclude that the security guard was sitting outside the building on his break when the complainant crossed the threshold and not blocking the outer door as claimed. I accept this because the complainant’s evidence was that she was outside the building when stopped by the security guard, yet the phone footage shows him to be within the foyer. The evidence of witnesses is that the fracas occurred within the foyer. I accept that she went back to the security guard and made a provocative statement. Exactly what was said was not specified. After the alleged abusive remark, I accept that she referred to the March 2015 incident and stated she was going to sue the store. I accept that the security guard then told her to behave herself. The phone footage of the incident revealed the security guard standing between the two doors speaking loudly with his hand outstretched. There is no evidence of racist remarks about members of the Roma community or Romanians. But it is accepted that the camera started rolling after the initial engagement.

I find the evidence from the witnesses and the complainant’s admission that she was roaring and used obscenities towards the security guard indicates that her conduct was disorderly. At what point is material. I have been asked to accept that this is a legitimate and understandable response from a person who believes she was being discriminated against on the basis that she is a member of the Roma community. This would not be unreasonable if the disorderly conduct sprang from the actions of the security guard. The alleged racist remarks about members of the Roma community are denied. There is no evidence to support the alleged parting shot of the security guard to the effect that “Romanians are no good.” I accept the evidence of the witnesses who reported the security remarking to the effect that the complainant should come in or go out.

The evidence overall indicates that on the balance of probabilities the complainant engaged in abusive conduct before she was initially asked to leave.

The complainant’s own evidence was that the security guard had no interaction with the third Roma person. The complainant’s complaint form states that she and her husband were the only persons denied access whereas other non- Roma shoppers were allowed access to shop.

The alleged insulting remarks about members of the Roma community are denied.

I acknowledge the significant points in the complainant’s case which made this decision a difficult one to make. The respondent was non- specific regarding the “opening salvo”; withheld witness reports; failed to supply CCTV footage, but the respondent’s evidence on the conduct which triggered the incident on 7 March was, on balance, more consistent, convincing and assured. I find that the significant omissions on the respondent’s part do not supplant the credibility of the respondent’s description of disorderly conduct. I find that the complainant, inside the foyer at this stage and unbidden, “opened hostilities”; a fracas took place; the security guard initially stopped the complainant from proceeding from the foyer into the store proper. I accept that the respondent leaves it to the security guard to decide as to what behaviour merits exclusion from the store.

I accept that these are decisions taken in the moment. I accept that the security guard behaved in a combative way. I find that non -Roma persons would be equally excluded if displaying aggressive and disorderly behaviour.

While I find that the complainant has raised an inference of discrimination, I find that the respondent demonstrated that the reason for the complainant being stopped in accessing goods was the disorderly conduct. I find that the respondent’s decision to deny her access to their store to access goods was unconnected to her ethnicity. I find that the respondent has rebutted the presumption of discrimination. If it was an excessive response, that does not necessarily make it an act of discrimination.

I find that the complainant was not discriminated against contrary to the provisions of the Equal Status Acts, 2000-2018.

I have decided to anonymise the parties as the complainant’s husband, bringing the exact same complaint against the exact same respondents describes himself as having been accused of a criminal act, something which could damage his reputation. Disclosing his wife’s identity would disclose his identity.

I find that the respondent has rebutted the presumption of discrimination. I find that the complainant was not discriminated against on the grounds of her ethnicity and contrary to the provisions of the Equal Status Acts, 2000-2018.

Retailer or Security company liable for the exclusion of a customer from a store.