Complainant

Respondent

Anonymised Parties

A Customer.

A Retail Store.

Representatives

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

Representatives of the 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-00030014-001

01/08/2019

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

He submitted his complaint to the WRC on 1 August 2019.

He submitted the ESI form to the respondent on 3 May.

The complainant had an interpreter at his disposal for the duration of the hearing.

At the outset, the respondent sought an adjournment as the security company 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. 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 objected to the request for an adjournment given the costs entailed. 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 that 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.

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 his wife. The complainant has lived in Ireland for 13 years

Complainant’s evidence.

The complainant had an interpreter at his disposal.

The complainant went to the respondent’s store on the 7 March. He picked up a trolley. The security guard saw him exit the van. The security guard was waiting for himself and his wife at the door. The security guard was sitting in front of the outer door. He denied access to the complainant and said to the complainant “you stole something from this shop before”. This is untrue. He was never removed from the shop before. The security guard stood in front of him and denied him access a few metres from the first, outer door. He told the complainant he could not come in. He asked the security guard to permit him to enter on a number of occasions. He started recording the situation on his phone as the security guard was becoming very aggressive. The security guard was sitting in front of the outer door.

The complainant’s phone footage, submitted to the hearing, shows the security guard just within the first door, in the foyer.

The complainant stated that when he asked the security guard if he was being denied access because he was Romanian, the security guard replied, “no, I ‘m Irish.” The complainant was offended at this comment.

The complainant passed the first door into the hallway. At this stage the complainant was between the first and second door. The security guard would not let him go beyond that point. The complainant was alongside his wife and the other Roma person. Some customers were trying to access the store. The complainant apologised to a man who was impeded. The complainant asked the security guard why he could not access the store. He felt ashamed as people were watching the incident.

The security guard was standing at all times. The complainant states in answer to a question about his earlier statement that the security guard was seated, that he may have mistakenly said the security guard was seated.

In questioning by the security company’s representative, he advised that he tried to enter first, followed by his wife and their friend. When the security company’s representative put it to him that his wife stated that she had entered first, the complainant said that they entered together. He denied that his wife went before him and conversed with the security guard. When asked, he stated that he did not notice the security guard smoking a cigarette. He stated that the episode lasted 6-7 minutes. He states that he didn’t recall seeing a man on a crutch nor did he recall banging into another customer with a trolley. The complainant stated that he did not block the doorway. The video was taken within the first and second door.

The complainant’s barrister states that the complainant’s alleged abusive language was never mentioned by the security guard in the phone footage submitted to the hearing. 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 complainant confirmed in cross examination that the security guard never said I’m not letting you in because your Romanian. But the complainant stated that the security guard knew that he was Romanian because he and his wife were speaking Romanian. The security guard was sitting in front of the outer door.

The complainant’s barrister notes that though requested, they were not provided with a copy of the incident report submitted by the security guard to the security company.

The complainant’s barrister objected to the respondent’s request to submit their own CCTV footage as same had been sought and denied by the complainant prior to the hearing and the evidence contained therein had not been put to the complainant who had by now finished his evidence.

The complainant’s barrister states that the complainant has raised a prima facie case of discrimination. He was denied access to the store, he is a member of a protected group, the security guard said to him “I am Irish”, the respondent failed to return the ES2 form, the respondent declined to send on their own video footage. This should lead the adjudicator to draw an inference of discrimination. The security guard acted intentionally.

The complainant submits that the respondent made no reference to training, policies, agreement between the respondent and the security company. No evidence of any equality proofing was provided.

The respondent has failed to rebut the presumption of discrimination. The respondent’s witnesses are unable to give the exact words spoken by the complainant’s wife which triggered the incident into which the complainant was drawn. The Roma community are a marginalised group who react poorly to racist suggestions, hence the complainant’s angry response to being excluded from the store. The respondent failed to disclose the CTTV footage and the witness statements. They cannot therefore discharge the burden.

The respondent failed to rebut the presumption that the exclusion was for grounds of other than race.

The remedy sought is compensation of an order that disincentivises this type of behaviour.

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(2) 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 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 his behaviour.

The solicitor for the security company denies that he was refused access to the store. The complainant entered through the first door. The complainant’s wife started the altercation. At the same time the complainant banged into a customer with a shopping trolley. The security company stated that they had CCTV footage which could demonstrate what had occurred.

Security Guard’s evidence.

The security guard has been working with the security company since 2012.

On the evening of 7 March, he was on his break. He noticed 3 persons getting out of a van; one male went to get a trolley. On arrival, the other Roma person, the friend of the complainant, was the first to enter the store followed by the complainant’s wife. The witness who had been smoking extinguished his cigarette. The 3 customers went into the foyer. The complainant’s wife came back and made a comment to him. He asked that customer to behave herself. The complainant had the trolley. His wife was roaring and shouting at the witness. The witness moved into the foyer. The complainant stated that the security guard was a racist and asked him if he was refusing him access to the store because he was Romanian to which the security guard replied,” no, I ‘m Irish. The complainant backed out of the lobby then and started recording the scene on his phone.

He asked the complainant’s wife to behave herself.

The security guard asked the complainant to move aside to allow a child and adult a throughway as the child seemed a bit nervous.

The complainant’s wife proceeded to abuse the security guard. He had no interaction with the first Roma person.

The complainant was very irate and was shouting. The complainant struck a customer with the shopping trolley.

On being asked about the process for dealing with difficult customers, the witness stated that verbal abuse is not tolerated. The complainant was being very disruptive. He treats everybody the same.

He told the complainant and his wife that verbal abuse was not tolerated. The witness advised the complainant that his wife was being denied entry because of her behaviour.

On being questioned by the security company’s representative, the witness states that he was to the side of the front door and was not blocking the entrance when the complainant approached the store. The complainant banged into a customer with a trolley. This happened. He prevented him from entering the store because of the verbal abuse. The witness mentioned the complainant’s wife’s verbal abuse towards him as the reason as well why the complainant was excluded. The complainant’s wife called him a” scumbag” and a” bastard”. The witness states that he did not block the doorway. The witness states that at the end he put his arm out and said you can go in or go out.

The complainant walked back to the van. The witness checked the child with autism to see that she was alright. No interaction occurred after that point.

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. He treats all customers the same.

Customer 1’s evidence.

This witness gave evidence that he saw the security guard speaking to the complainant and the complainant’s wife. The complainant pushed a trolley into customer 1. The security guard told customer 1 that he would handle it.

The complainant’s wife was roaring and shouting at the security guard. Customer 1 was outside for about 3 minutes trying to get into the store. The complainant’s wife was in the doorway, arms outstretched and was blocking people from getting in the door. Shopper 1 heard profanities coming from the complainant’s wife. The security guard was very calm. Shopper 1 said he never saw anything like this previously. He was in between the 2 doors. Shopper 1 did not know what it was about. The complainant did not apologise to him for the trolley incident; he laughed at shopper 1. Shopper 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.

On being cross examined by the complainant’s barrister the witness stated that the complainant, his wife and their friend were inside the first door.

Customer 2’s evidence.

Shopper 2 went with his niece who has autism to shop in the store on 7 March. He saw an obstruction by complainant. The security guard said go in or go out. The complainant’s wife was irate. The incident was going on inside the doorway. The security guard was telling the complainant’s wife to behave herself. The complainant and his wife were roaring and shouting at the security guard. The complainant took out his phone and commenced recording. Shopper 2, when asked, stated he did not hear the complainant ask to speak to the manager. Shopper 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 the witness stated that the complainant was inside the first door, in the foyer. He remembers the security guard asking the complainant’s wife to behave herself. SG said get in or get out.

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

The respondent’s Acting Head of legal and Compliance 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 admit customers who are being abusive. The complainant was legitimately denied access to the provision of goods. The respondent does not discriminate against any shoppers on the grounds of race. The respondent has 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, He was inside the shop. The behaviour of his wife kickstarted the episode. He was asked if he wished to go or stay.

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 respondent’s store on 7 March 2019.

Section 3(1) of the Equal Status Acts 2000-2016 states that “discrimination shall be taken to occur 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 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 he was denied access to the respondent’s store on 7 March 2019 because he is a member of the Roma community and that this constitutes less favourable treatment on grounds of race.

Correct Respondent

The complainant has made a complaint against the respondent, a retail store, and also lodged a complaint 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 for 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 Dublin DEC-S2005-094. The security guard 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 find that the respondent is statutorily liable for the actions of the security guard and is the correct respondent.

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 respondent’s 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 submitted to raise an inference of discrimination are as follows:

the complainant is a member of a protected group,

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

Non- Roma shoppers were allowed access the store,

the security guard who stopped him stated” I am Irish”.

ES.2 response to the complainant’s ES. I 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 now demonstrate that their action in stopping the complainant accessing goods was driven by factors unconnected with his ethnicity.

Did the respondent rebut the inference of discrimination?

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 was shouting at the security guard. It is accepted that the complainant’s wife used what her barrister described as” choice language”. It is agreed that there was a previous incident in 2015 between the complainant’s wife and the security guard which was an ingredient in the mix.

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 upon entry he had been falsely accused of a previous theft, a fact uncontested by the respondent, and that it was his ethnicity, as opposed to the respondent’s contention that it was his behaviour in joining in the fray and banging a trolley into another customer which prompted the security guard to intervene. The respondent states he was halted following an outburst from his wife. He was ultimately invited to go in or out.

The respondent’s rebuttal of the presumption of discrimination is concentrated on his behaviour to the exclusion of all else. They rely on the evidence of their witnesses. The case made by the security company for their security guard’s decision to halt the complaint’s entry into the store was the contribution of the complainant to the fracas caused by his wife. His contribution included striking a customer with a trolley. The complainant could not recall this event. Customer 2 struck by the trolley did; he used the expression “rammed into him “and states the complainant laughed at him and did not apologise. I accept that customer 2 was struck by a trolley pushed by the complainant. He apologised to one customer for impeding that customer’s access.

The complainant confirmed in cross examination that the security guard never said I’m not letting you in because you are Romanian but stated that the security guard knew that he was Romanian. because he and his wife were speaking Romanian

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 was not blocking the outer door as claimed. I accept this because the complainant’s evidence was that he was outside the building when stopped by the security guard, yet the complainant’s phone footage shows the security guard to be within the foyer, arm outstretched, remonstrating with the complainant. In the main, the evidence of witnesses is that the fracas occurred within the foyer. The complainant didn’t answer the question that the security guard approached him as he was causing an obstruction with his trolley. On the basis of the evidence I find that the complainant’s contribution to the fray, kickstarted by his wife, was what drove the respondent to deny him passage through to their store to acquire goods. I accept on the balance of probabilities that the complainant engaged in disruptive conduct before he was initially asked to leave. I accept that he was irate at the decision to deny his wife access to the store. I accept the trolley incident.

There is no evidence of racist slurs about members of the Roma community or Romanians on the video footage. Nor does the complainant attribute any such slurs to the security guard in his evidence.

The complainant’s complaint form states that he and his wife were the only persons denied access whereas other non- Roma shoppers were allowed access to shop.

I do not find the security guard’s statement that” I am Irish” in response to the charge that he was racist, and in the context of being asked if complainant’s exclusion was attributable to his ethnicity as a Romanian signifies a discriminatory intent; rather it was a retaliatory, needlessly combative statement. The complainant sometimes described himself as Roma and sometimes as Romanian.

I acknowledge the significant points in the complainant’s case which made this decision a difficult one to make. The respondent furnished no policy demonstrating a commitment to non- discriminatory practices; was non- specific regarding the opening ‘shot’; 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. An Interpreter was present. I find that the complainant was uncertain and hesitant in his answers about his location in the shop; who entered first. In saying this I take into account that English was not the complainant’s first language. I also acknowledge the argument presented on behalf of the complainant that the Roma community is a marginalised community but it’s the complaint of this member of the Roma community upon which I must adjudicate. I find that 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 what behavioural breaches can be tolerated and what breaches lead to exclusion from the store.

I accept that the security guard behaved in a combative way. I accept on the basis of the evidence 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 disruptive conduct. I find that the respondent’s decision to deny him access to their store to access goods was unconnected to his ethnicity. I find that the respondent has rebutted the presumption 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 decision refers to the complainant having committed a criminal act.

I do not find that the complainant was discriminated against contrary to the provisions of the Equal Status Acts 2000-2020.

Security company vicariously liable under section 42(2) of the Act of 2000 as amended