Complainant

Respondent

Parties

Patrick Vaughan

Tesco Ireland ltd (amended on consent)

Representatives

Margaret Turner

Mary Toher, Vincent Toher & Co

Act

Complaint Reference No.

Date of Receipt

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

CA-00027277-001

20/03/2019

The WRC received a written complaint from the complainant in the case on 20 March 2019. There were immediate concerns surrounding the validity of this complaint as it appeared that notification had not been sent to the Respondent in accordance with Section 21 of the Act. The Complainants attention was drawn to “Procedures in the Investigation and Adjudication off Equality complaints “

The Complainant was asked to submit reasons if he was seeking to dispense of this notification period?

On 10 April 2019, the WRC sought a response to their earlier letter of 1 April and informed the complainants representative that “this complaint cannot proceed until these issues have been addressed “

On 15 April 2019, the complainant’s representative confirmed that the respondent had been notified of the complaint within the first two months of the incident of discrimination.

On 31 May 2019 the respondent wrote to the WRC and submitted that the claim was out of time. They subsequently sought details off the complainant’s notification in accordance with Section 21 of the Act.

On 19 July, the complainant’s representative copied a communication from the Respondent dated 20 December 2018 which appeared to withdraw the complainant’s invitation to trade in “light of behaviour reported by other colleagues “She also attached a follow up note to this communique which sought clarification of the behaviour on 11 June 2019.

In his written complaint received on March 20, 2019. The Complainants sister and chosen representative outlined that during October 7, 2018 during a shopping trip to his local store, the complainant, who was disabled and in possession of a mental illness, was asked to “put down his goods and leave the shop “He attempted to pay for his goods but was refused. The complainant was reluctant to leave the store without receiving a reason for his refusal and held his ground. He was threatened by Garda intervention.

The Garda attended the site but while sympathetic did not get involved. The Complainant was very upset by these actions as he had an omnipresent mental illness and reliance on medication.

The complaint went on to record that the complainant’s sister rang the Manager of the store the next day to be told that the complainant had been witnessed by a staff member of passing an unspecified comment at a fellow shopper, who promptly left the store.

The complainant habitually shopped for single items and on that day, he was seeking to buy coffee. He had no recollection of passing a negative comment to anyone.

The Complainant submitted that he had been discriminated against in terms of his mental illness and treated with a complete lack of humanity by the respondent. He felt humiliated.

The Case came for hearing and the Complainant was represented by his Sister, who had travelled from the UK. He was also accompanied by his nephew in support.

In response to the Adjudicators line of questioning on whether the complainant had placed the respondent on notice of the events of 7 October 2018 within the time lines set down in Section 21(2) of the Act? The Complainant confirmed that the statutory notification requirements were executed within the 8-week period when she contacted the Respondent Area Manager. She referred to a report dated 11 December and was requested to produce proof of compliance.

The Complainant refused to give evidence to the hearing.

The Complainant’s representative outlined the background to the case. She submitted that she had given the ID number for her complaint to the respondent to the WRC. She also maintained that she had phoned the store several days post 7 October but had not been satisfied with the response she had received.

The Complainants representative had a mental disability of Paranoid Schizophrenia and erratic behaviour supported by a 24/7 medication regime and had been a customer of the Respondent for many years. On 7 October 2018, he went to the shop to buy coffee. He has a habit of speaking to himself and addressed himself on a cheaper brand of coffee.

The Representative outlined that the complainant had been approached to leave the shop without a reason. He was threatened with the Gardai and he was traumatised and humiliated as the shop was full of people. The Customers had not complained him, and he just put down his basket and left the shop. This was an infringement of his human and civil rights.

He was subsequently barred from the store and the complainant’s representative disagreed with the respondent reliance on Section 15 of the Act.

The Complainants representative had spoken to the manager seeking to resolve the matter but there was no resolution. She cited a comparator as others in the shop who did not have a mental illness. He was further disadvantaged by being denied usage of his store loyalty card.

The Complainants representative confirmed that the complainant had not informed the respondent of his mental health condition

At the end of Mr A’s evidence, the complainant, who had already denied the opportunity to present his evidence to the hearing, stood up and began shouting and gesticulating. He stated that he was going home. It was over, and he knew what was going on. This behaviour radiated outside the hearing room and into the hotel foyer.

I could see the visible fear in the room at that point and amongst the respondent witnesses. I adjourned the hearing and separated the parties.

I allowed some time to pass before approaching the Complainants representative to obtain a clear understanding on whether the complainant wished to proceed with his case?

I was informed that the complainant wished his representative to proceed with the hearing without him in attendance to obtain justice in the case and that the earlier behaviour had been prompted by stress.

The Respondent expressed reservations at this behaviour and disputed that the case could proceed with the complainant in attendance.

I explained to both parties that the complainant’s behaviour had upset the participants at hearing and could not be repeated.

I decided to adjourn the hearing until I received a full medical report from the complainants treating consultant which stated that the complainant was deemed fit to participate at the next hearing date. I allowed a 4-week period and wrote to both parties accordingly.

I subsequently received two short summaries from the Complainants representative, neither of which informed me that the complainant was unfit to attend and participate fully at hearing. The letters indicated that the complainant was stable and wished for his family to represent him at hearing.

On 24 October 2019, I wrote to both parties confirming the resumed hearing for the afternoon of October 29,2019, to facilitate the complainant. I offered to permit the witnesses present one by one if would assist the parties.

I requested two outstanding documents to proceed with my investigation

1 Notification of claim to the respondent in accordance with Section 21 of the Act

2 Respondent Conflict resolution Policy referred to during day one of hearing.

At the resumed hearing, the complainant presented an unsigned email dated December 11, 2018 sent to the Respondent customer services, titled “Complaint re Discrimination “This was accompanied by an acknowledgement from the respondent. The Complainant representative submitted that this complied with the statutory notification required and constituted a valid complaint under Equal Status Legislation. She further submitted that the WRC had received the complaint without issue.

The Complainants representative went on to submit that she had not received my letter dated October 24. I appraised her of the contents and reaffirmed the notification requirements provided for in Section 21 of the Act.

The Respondent, a Retailer, refuted the claim of discrimination lodged by the complainant. They submitted that the respondent staff had acted in accordance with store policy and they had no knowledge of the complainant’s mental health condition /disability.

The Respondent advanced a preliminary argument that the complainant had not complied with Section 21(2) of the Act. The Respondent was first placed on notice of a claim under the Equal Status Act from WRC dated April 1, 2019.

The Respondent submitted that the complainant had presented at the store exhibiting challenging behaviour towards a female customer on 7 October 2018. This was witnesses by a Store assistant who sought advice from his Senior on how best to proceed. The store assistant, Mr A was requested to bring the customer to meet the Manager, but the customer had let the shop. The complainant was requested to leave the shop, which he refused to do, persisting in seeking to pay for his goods at the till. The Complainant became verbally aggressive when denied service and politely asked to leave. The Complainant eventually left the shop on the arrival of the Gardai.

The Respondent relied on the provisions of Section 15(1) of the Act which explain the parameters in which the Respondent addressed the situation that unexpectedly arose.

For greater certainty , nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises or to provide services or accommodation or services and amenities related to accommodation to the customer in circumstances which would lead a reasonable individual having responsibility , knowledge and experience of the person to the belief , on grounds other than discriminatory grounds , that the disposal of goods….. to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or near the place in which the goods or services are sought or the premises or accommodation are located.

The Respondent stressed that the occurrence on October 7 was a customer relations issue and not an act of discrimination. The complainant had been politely asked to leave the store following a perceived uncomfortable encounter on the shop aisle. He responded by becoming highly irate and verbally abusive up to the point where he openly challenged a member of staff “to go outside for a fight “. The Respondent was merely following their customer care policy and the same action would have been taken with everyone.

The Respondent was not on notice of the complainant’s disability.

The Respondent was aware of many previous incidents of the complainant’s erratic behaviour in the store, but he had been allowed to attend without restriction, but the events of October 7 tested the staff and they had a duty to act in protecting staff and customers.

Evidence of Mr A, Sales assistant.

Mr A had worked in his role for 3.5 years and recalled October 7, 2018. He saw a lady on Aisle 2 of the shop. He witnessed the complainant advance towards her and he saw her startled face. He saw the complainant, who had his back to him, repeat the advance. He saw the female customer put her shopping down and walked out.

He reported the incident to his Manager and was directed to find the customer, who by that stage had vacated the store. He was with the Manager when the complainant was asked to leave the store due to his unruly behaviour. He accompanied his manager to the office as he wanted to take further advice.

He saw the complainant approach the till. The Manager told the complainant that the store would not serve him. The Complainant challenged this statement and became provocative and confrontational by inviting staff outside to fight whilst in front of the till. Customers moved around his static one-hour presence at the till.

Mr A was aware that the complainant was eccentric, but he did not know that he was mentally ill.

Mr A’s manager called the Gardai. He had observed the complainant make a Nazi style salute to a German customer. This shocked Mr A and he apologised to the customer.

He also recalled that several weeks earlier, the complainant had openly threatened him while passing his house, by saying that “Mr A, I’m going to get you and you will all lose your jobs “

He was aware of the company policy on unruly customers.

During cross examination, Mr A confirmed that he had not heard the content of the communication between the complainant and the female customer on Aisle 2 as he had been too far back. He saw that she was startled.

He confirmed that he had heard the complainant shout, swear and utter a profanity. The order not to serve came from the manager.

Mr A had nor reported the “home taunt “but he was aware that the complainant had a habit of whispering to staff in the store.

The hearing commenced on Day 2 with further witness evidence. The Respondent sought to enter some newspaper clippings which they said pointed to a history of past similar behaviour on behalf of the complainant which had attracted Superior Court attention. This had not been included in the introductory summary on behalf of the respondent.

Evidence of Mr B, Team Leader.

Mr B outlined that on October 7, 2018, he had been approached by Mr A who had raised concerns about a customer present in the store. The incident involved the complainant. He checked the CC TV footage available at that time.

He then approached the complainant and explained that MR A had complained his behaviour in the store. The Complainant was informed that he was to be refused service and reacted in a combative and accusatory fashion by referring to him as a “Black and Tan “. He refused to move or leave, and customers had to be moved around him.

Mr B was aware that the complainant had some behavioural disturbance at the store a year ago but was not aware of his disability.

During cross examination, he confirmed that he had verified events from CC TV footage, but this footage was no longer available. He was unable to rewind the footage as the Manager was on leave.

Mr B explained that he had been shocked by events and had compiled a written statement in record. He had not compiled an incident report.

Evidence of Mr C, Duty Manager

Mr C had worked at the store for 4 years. He recalled October 7. He had left the store and was contacted by Mr B on the phone. He detected that Mr B felt threatened by the complainant. He had no knowledge of the complainant’s disability.

He returned to the store and parked outside. There were 2/3 customers outside the store and it clear something was going on.

He found the complainant at the till on aisle 1 and told him that the gardai were on the way. The Complainant responded that it was his constitutional right to remain on in the store.

On the following Monday, the complainant’s nephew called the store and spoke to Mr C for 5 minutes and seemed to accept the company position He did not seek any specific course of action. He recalled that the complainant’s representative had spoken to him a year before for 25 to 30 minutes and had been critical of the staff at the store. He was unable to provide a time line for this.

CC TV footage is not retained for longer than 30 days. He was not requested to provide CC TV Footage to the complainant.

Mr C confirmed that he had asked other problem customers to leave the store. The company had a positive history of hiring staff with disabilities and did not discriminate.

During cross examination, the complainant’s representative denied any past conversation with Mr C. He confirmed that sanctions had not been applied against the complainant at that time.

Mr C confirmed that the complainant was not treated less favourably than other customers. He confirmed that the Gardai had not informed staff at the store off the complainant’s disability.

Mr C confirmed that he stayed back in the store for an hour only leaving 5 minutes after the Gardai left. He had received standard training in equality. He had a clear recall of making reasonable accommodation for autistic school children when their condition had been explained and would have done the same for the complainant, if he had been requested.

Evidence of Ms A, Customer Assistant

Ms A had no awareness of the complainant’s mental illness or of events of October 7. She had a recall of the complainant staring at another member of staff. She had informed managers that she had felt uncomfortable by the complainant.

Evidence of Mr D, Store Manager

Mr D was 16 years in employment with the company. He was on leave and  had no knowledge of the complainant’s mental illness.

He recalled that he might be asked attended the check out as support for 3 members of staff. The Complainant tended to refer to people as “Commander /Commandant “by the complainant. The Respondent had not compiled a risk assessment.

In cross examination, Mr D was requested for information on a workplace policy on mental health and he confirmed that there as a customer service policy. The store served 9,000 customers per week and Mr D believed that the staff had acted in accordance with this policy. The complainant had not participated in any investigation into the events complained of.

The Complainants representative then directed a question towards Mr C and asked him if she had mentioned the complainant’s disability in their earlier conversation of a year ago. Mr C responded by sating that the representative had already stated that she had no recall of that conversation.

Unfortunately, this prompted the complainant to direct the words “liars “at the respondent delegation. The Complainant was requested to withdraw this comment but refused. The hearing was halted immediately.

I informed the parties that I had enough information on which to base my decision and concluded the hearing.

The Equal Status Acts 2000-2015 prohibit discrimination in the provision of goods and services on any of the 10 grounds referred to in the Act.

This case commenced on receipt of a complaint dated 25 February 2019 but received by the Commission on 23 March 2019. At the point of receipt further clarifications were sought from the complainant on the composition of the complaint.

It is the Complainants’ stated position that the Respondent was formally notified of a complaint of discrimination on 11 December 2018 at 14:08 hrs. I have referred to the body of this complaint earlier. The response received from the respondent, dated 20 December at 11:11 hrs is quoted in full here:

“…We have carried out a review based on all the information you have provided in conjunction with our Area Manager. the safety and well being of all our customers and colleagues are paramount to Tesco and we expect all customers to act in a respectful manner. In light of the behaviour reported by other colleagues the invitation to trade is withdrawn for the time being.”

This places the notification to the respondent outside the parameters of Section 21(2) of the Act

Before seeking redress under this section, the complainant

(A)    Shall within 2 months after the prohibited conduct is alleged to have occurred or, where more than one incident of prohibited conduct is alleged to have occurred within 2 months after the last such occurrence, notify the respondent in writing of

(1)    The nature of the allegation

(2)    The complainant’s intention if not satisfied with the respondent’s response to the allegations to seek redress under this Act

And

A further opportunity exists in accordance with Section 21(2) (b) for the complainant to question the respondent in writing to obtain material information.

Section 21(3) provides from some flexibility by the WRC in extending this time line to 4 months on reasonable cause or on exceptional grounds dispense with the notification altogether.

It is of cardinal importance to me that the complainant chose to make his complaint to the WRC on plain paper and without recourse to the Equal Status Form, ES1. There is an excellent background document for this on the WRC website. It is regrettable that the complainant did not action this avenue of complaint as it places central importance on the statutory notification requirements prior to submitting a complaint to the WRC.

The ambiguity on whether the complainant had complied with these notification requirements ran over both days of hearing. On inquiry, the complainant’s representative insisted that the December 11, 2018 satisfied the notification requirements and did not make application for exceptions to this when asked. The December 11 email was submitted in time for day 2 of hearing.

The Respondent was consistent in submitting that the claim had not been submitted in accordance with Section 21 off the Act and should be dismissed.

This ambiguity necessitated hearing the entire case, where the complainant chose firstly to attend but not participate in giving his evidence. He did not make eye contact. He then confronted the process by presenting with extremely disturbed behaviour which necessitated a prompt adjournment. I have noted that the hearing attendees were very shaken by this behaviour. I had to consider the safety of all parties.

I thought it prudent to continue the adjournment into seeking a confirmation of fitness to attend the hearing from the complainant’s representative, who always exhibited an unconditional positive regard towards her brother but seemed not to be conversant with the key sections of the Equal Status Act on which the case was directed. I shared the WRC booklets on Equal Status with the parties.

The Medical statements received after Day 1 of hearing pointed to the complainant having a history of mental illness which had stabilised. The Medical report did not rule the complainant out from further attendance. On that basis, I reconvened the hearing, offering a later start time as the report indicated that afternoon was a better time for the complainant. I also offered to hear from the witnesses one by one which was not taken up by the complainant.

From first reading, I was keen to hear from both parties to the complaint. An important issue of alleged prohibited conduct had been raised and the hearing was arranged to clarify matters and to aid conclusion of my investigation. I must admit that I also found the complainants verbal outbursts to be unwelcome and I stressed to both parties on Day 1 of hearing that I would not accept a repeat of these outbursts.

It seems that the complainant was dissatisfied with the outcome of the internal customer service complaint and this prompted referral to the WRC in March 2019. I have already referred to the rules which exist around reception of this complaint and the check list against the terms of Section 21 of the Act. These were flagged by the WRC to the complainant from the outset. I cannot accept the complainant’s denial of this.

I asked the complainants representative on several occasions to clarify the notification of the complaint to the respondent in accordance with Section 21 of the Act. She has relied fully on the December 11, 2018 email.

I have some difficulty with this position as it is not wholly compliant with Section 21 (2), in that the complainant had not submitted in writing that if he was unhappy with the response received from the respondent, that he intended to make a complaint under the Equal Status Acts.

I appreciate that both the complainant and his representative may have been distressed by how they perceived the events of October 7, 2018, however, there is a firm legal framework surrounding progression under the Act and I find that insufficient regard has been directed at the legal framework by the complainant in this case.

As the complainant has insisted that the December 11, 2018 notification complied with the terms of Section 21(2) of the Act and has not made any alternative submissions, I must respect that this the stated position of the complainant and respect it. The Respondent took an alternative view.

For my part, I must find that the December 11,2018 notification which constituted the customer complaint does not comply with the obligatory statutory notification in Section 21(2) of the Act, required in this case.

The purpose of placing the respondent on notice of a potential complaint under the Equal Status Act is to give both parties an opportunity to resolve issues at an early stage.

Such was the complainant’s representative conviction that the claim was properly notified to the respondent in accordance with the Equal Status Acts, I have no further submissions to explore on this occasion. I have not identified any grounds to relax these time lines on reasonable cause or exceptional circumstances.

I find that I lack the jurisdiction to take the case beyond this point.

The claim is not well founded.

Decision:

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

I have concluded my investigation. I am satisfied that I allowed the parties enough opportunity to be heard in this case. I appreciate that the hearing was disturbed on two occasions by the complainants unprovoked verbal outbursts which unsettled everyone present.

However, I am satisfied that the complaint received by the WRC on 23 March 2019 does not satisfy the criteria listed in Section 21(2) of the Equal Status Act 2000-2015 and I lack the jurisdiction to advance the case further.

The claim is not well founded.

Discrimination on grounds of disability