Complainant

Respondent

Parties

Ranadave Mukherji

Marks & Spencer

Representatives

Complainant

Aishling Walsh Miley & Miley

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030205-001

08/08/2019

The alleged discrimination took place on the 20th April 2019 when it is stated that the complainant was discriminated against on the grounds of religion and race when a store manager snatched a heavily discounted perishable product out of his hands and offered the product to other customers of different race and religion.

The manager in the store snatched one of two products from the complainant and prevented him from buying discounted items marked with a yellow sticker whose best before date was nearing expiry. On the last incident of discrimination, the manager’s discriminatory conduct is described as snatching it out of my hand in one instance and offering the item to an Irish customer in my place in the last instance. The latest instance related to a heavily discounted perishable product that along with other discounted goods was placed in a trolley to clear. The complainant sought CCTV footage of the incident; however, based on the description provided no relevant CCTV was provided showing the incident. However, a picture of a trolley in an aisle was provided; however, it was not possible to see what product was in the trolley. The complainant had taken the only two products of this type out of the trolley and was allowed to keep one only.

The complainant alleges that an animus exists between him and the food hall manager as he regularly shops at a time when the discounted product is marked up and put on sale. He cites another example on a different date, regarding another perishable product heavily discounted and again the manager made him put it back. The manager resents the complainant for benefiting from the discounted products marked with yellow stickers based on their best before date coming to an end. He attributes that animus to a prejudice based on his colour and religion and possibly a preference for staff to benefit and not the customer. The complainant asked was it store policy to give preference to the store staff to buy the discounted product?

On the last occasion of discrimination, the manager snatched the product out of his hand and then proceeded to ask each passing customer near the trolley of discounted product, did they want the product that he had taken away from the complainant? The complainant could keep one of the products, there were two in the basket. Eventually another customer decided to buy the product who the complainant believes was Irish, based on his accent. There were three customers in total offered the product as they passed by the trolley, all three were of a different colour to the complainant. The third customer took the product. The complainant also believes that his colour is associated with being a Muslim and on this basis, he believes that the manager also discriminated against him based on his religion.

It is the company’s policy to sell all product marked with a yellow sticker and heavily discounted to avoid waste and to earn some income on that product. A perishable product would never be placed in a trolley as stated by the complainant. The manager denied that the events occurred as alleged by the complainant. While the manager recognises the complainant from his frequent visits to he food hall, he has had no direct interaction with him.

Section 38(a)(1) of the Act states that 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. The respondent denies the factual account made by the complainant. He states that the evidence as provided has no factual basis and questions the veracity of the account since the referenced product is a perishable and meat item. To place such an item in an unrefrigerated trolley is so contrary to practice and regulation; the account has little or no evidential credibility.

The complainant asserts that it is not reasonable that CCTV footage recording the event is not available.

The respondent states that the request was actioned; however, the information supplied was not sufficient to distinguish the complainant from staff members or other customers. However, CCTV identifying the incident alleged could not be found because it never occurred.

The Act defines discrimination at Section 3(1)(a) as:

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

And the relevant discriminatory grounds are detailed at 3(2)(e) [ As between any two persons, the discriminatory grounds]

that one has a different religious belief from the other, or that one has a religious belief and the other has not.

And then at 3(2)(h):

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

The complainant alleges that he was treated less favourably to the three customers who the manager allegedly preferred to give the second discounted product to over the complainant because of his race and religion.

The manager allegedly snatches the product from his hands and then stands by the trolley and as three successive customers pass by he offers the product to each of them in turn, the first two refuse and the third customer accepts the offer and that person has an Irish accent.

This account in denied as ever taking place by the respondent.

A prima facie case must be established by the complainant to establish the presumption of discrimination.

The complainant has provided proof that he was shopping at the store on the day in question.

However, he has failed to make a prima facie case with facts that would establish a presumption of discrimination on the grounds of race and/or religion.

He must prove that a discriminatory ground existed-in his evidence he at first relied on the fact that the third customer spoke with an Irish accent and then at a later point gave emphasis to the fact that all three customers were white. He stated that the manager wanted to give the product to a non-coloured person. He states that by association he would be deemed to be a Muslim because of his colour.

The complainant has worked in supermarkets and under cross examination accepts that perishable product should not be placed in a trolley for sale even if that product is substantially reduced and must be sold.

There is no factual evidence other than the disputed accounts made by the complainant and denied by the manager. The complainant carries the burden of proof to make out a prima facie case. The complainant has not established facts to ground his claims relating to racial and religious discrimination to establish the presumption of discrimination and on that basis the claims are not well founded and fail.

As the complainant has not made out a prima facie case based on facts required to establish the presumption of discrimination based on the ground of race and religion, the complaints are not well founded and fail.

Discrimination- Race- Religion