Complainant

Respondent

Anonymised Parties

A Complainant

A Supermarket

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031034-001

20/09/2019

The claim was submitted on 20th of September 2019.   In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 3rd of February 2020. Both parties were present at the hearing.

Given the sensitivities involved in this case I have decided to exercise my discretion to anonymise the parties in this case.

The complainant submits that

He attended the respondent shop on 21 March 2019 and while he did his shopping he was followed around the store by a member of staff,

As he paid for his items at the checkout he asked to speak to the manager,

He then asked the manager why he had been treated in this way and the manager responded that it was because he is Roma and he made a number of derogatory and offensive remarks in relation to the Roma community and in particular in relation to Roma begging outside the shop,

Since the incident on 21 March, the complainant has been followed on each occasion that he enters the shop, he finds this practice offensive and embarrassing and considers it to be wholly discriminatory, as other customers are not automatically followed in the shop.

The complainant links this to an incident which occurred on 1 or 2 February when his wife, was required to leave the shop for a similar reason to that stated namely as she was linked to begging outside the shop,

The complainants wife submitted a separate complaint to the WRC in relation to this matter.

The respondent submits that

The complainant has never been followed in the shop,

The respondent shop has about 50 security cameras and so there would be no need to follow a customer in the shop,

There was an incident in February 2019 involving the complainant wife and following which the complainant became very aggressive and started shouting at the manager this is this incident is the subject of a separate complaint,

The complainant has been in the shop a number of times since and has never been followed.

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,”

Section3(2) provides:

“(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 a different race colour nationality or ethnic or national origins (the “ground of race”),”.

Section 5, of the Act provides:

“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“

Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires the complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination.

The complainant claims to have been discriminated against on the ground of race. His claim form states that he attended the respondents shop on 21 March 2019 and alleges that while he did his shopping he was followed around the store by a member of staff.   He further asserts that as he paid for his shopping at the checkout, he asked to speak to the manager who when he arrived at the till made a number of derogatory and offensive remarks in relation to the Roma community and in particular in relation to Roma begging outside the shop.   The complainant claims to have been followed around the shop each time he has shopped there since then.

The complainant advised the hearing that he was shopping in the respondent during which he was followed around the shop by a member of staff who called him a beggar, a thief and a gypsy. The complainant stated that he then asked to speak to a manager. The complainant stated that the manager came to the till and he asked the manager why he was being called such names.   The complainant when giving evidence at the hearing was unsure as to whether it was the person who had allegedly followed him around the shop who called him these names or if it was the manager who was called to deal with the matter who had called him names. The complainant at the hearing gave two different accounts of this alleged incident.

The complainant at the hearing couldn’t say when exactly this incident was alleged to have happened but referred back to another incident around the 3rd of February 2019 when he alleges that his wife had been asked to leave the shop.   Both parties advised the hearing that the February incident had been the subject of a separate complaint on which a hearing had taken place the previous week.

The respondent advised the hearing that there was no incident involving the complainant on the 21st of March and that they couldn’t even say if the complainant had been in the store on that date. The respondent stated that there had been an incident around the 1st or 2nd of February 2019 involving the complainants wife and where she had been asked to leave the shop.   The respondent stated that they never had an issue with the complainant but added that the complainant a day or two after the incident with his wife had come in to the shop and asked to speak to a manager asking why his wife had been asked to leave the shop.   The respondent stated that they had never had an issue with the complainant.   The complainant in his claim form claims to have been followed each time he went to the shop but at the hearing he stated that he had been in the shop a number of times since and without any incident.

The complainant at the hearing stated that he could not remember whether the incident where he alleges to have been followed happened in February or March.   Given that the claim was submitted on 20th of September 2019 the cognisable period of the complaint dates from 21st of March 2019 to 20th of September 2019.

The respondent manager advised the hearing that he had been called to the till by a member of staff a day or two after the incident possibly on 3rd of February 2019 as the complainant had asked to speak to a manager. The manager advised the hearing that the complainant on that occasion had become abusive towards him asking why his wife had been asked to leave the shop and had started shouting abuse at him.   The manager stated that this was about 4 pm on a busy Saturday afternoon and the shop was busy and crowded he stated that he walked away so as to avoid any escalation of the matter.

The complainant at the hearing alleged that the respondent manager came to the till when he had asked for him and he stated that the manager then made a number of   derogatory and offensive remarks in relation to the Roma community and in particular in relation to Roma begging outside the shop. The manager at the hearing denied these allegations and stated that it is unbelievable for the complainant to assert that a manager came to the till area on a busy Saturday afternoon and in front of customers began using abusive and derogatory language about the Roma Community. The manager added that there had previously been an issue involving the complainants wife begging outside the shop but that there had never been any issue or problem with the complainant.  

The respondent in addressing the complainants claim that he had been followed around the shop by someone while doing his shopping stated that this did not happen and added that the store has about 50 CCTV cameras and a security guard who sits at a security desk watching these cameras. The respondent added that if they were suspicious of any customer the practice is that the security officer would watch them on camera as they do not follow people around the shop.

The complainant when questioned at the hearing stated that he had been in the shop a number of times since the incident and that no problems or issues had arisen.

The respondent advised the hearing that the incident where the complainant asked for a manager occurred on the 3rd of February and related to an incident involving the complainants wife a day or two earlier and which was the subject of a separate complaint.   The complainant at the hearing could not say if he was in the shop on the 21st of March or if there was any incident on the 21st of March but referred back to the incident involving his wife.

The complainant could not provide any evidence of any incident on the 21st of March as per his complaint form and could not say who had followed him around the store or whether it was a member of the respondents staff. He also could not say whether it was the person who had followed him or the store manager who had allegedly been abusive towards him.

Having considered the totality of the evidence adduced in relation to this matter I am satisfied that the complainant has failed to establish a prima facie case in respect of an allegation that he was subjected to less favourable treatment on the ground of race by the respondent in respect of an incident alleged to have taken place on the 21st of March 2019.  

Accordingly, I am satisfied that the respondent did not discriminate against the complainant on the ground of race and that this claim fails.

I am satisfied that the respondent did not discriminate against the complainant on the ground of race and that this claim fails.