Complainant

Respondent

Parties

Aisha Amjad

Primark Limited Pennys

Representatives

Michael Kinsley B.L. instructed by Lombard, Cullen & Fitzpatrick, Solicitors

Claire Bruton B.L. instructed by Hayes Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00033348-001

20/12/2019

The complainant and her mother (who has made a separate complaint) say that, in the course of a shopping trip, they were the subject of religious and racial discrimination.

The incident occurred in the respondent shop in Dublin on the morning of July 19th, 2019.

The complainant had entered the store with her mother.

A crate was being set up from which to offer bargain items for sale as they entered but initially they continued around the shop.

Her mother selected a number of items to try on and on the way to the fitting room they noticed that the bargain crate was then being stocked. It was being filled from another crate by a shop assistant.

They went towards the bargain crate and waited for some minutes but felt that the employee seemed to slow down in completing the task of filling the crate as they were waiting.

They then left that area and went to the fitting rooms, returning some ten minutes or so later to the bargain bin as the assistant was still putting items in the bargain bin from another source. This involved removing some of the packaging from each item.

They pointed to a particular packet in the crate that they wished to purchase, and the assistant simply said that she could not give it to them. She then moved the item further away and dealt with other items while packing the bargain bin.

The complainant felt that the assistant was hostile and even rude in her demeanour towards her and her mother.

At a certain point an Irish person approached the assistant and was permitted by her to go through the crate and select an item with no issue whatsoever.

Again, they were left standing and were not permitted to select an item. Later the assistant was about to place an item in the bargain bin and they expressed an interest in it. It was handed to the complainant’s mother by the assistant by the tips of her fingers and dropped into her hand. The way she handed the item was rude.

Her mother then left to pay for this item at the till and the complainant remained at the bargain bin. At this point a security employee came over to the assistant and said, “let me know if they are giving you trouble, and I will sort it out”.

The assistant said; “I know you will”. The complainant believed that there was at least one other person present for this exchange. At an earlier point a lady passing remarked to the complainant’s mother “she’s very rude isn’t she” referring to the shop assistant.

The complainant’s mother is originally from Pakistan and the complainant is of Asian ethnicity. The complainant believes that her treatment and that of her mother related to their race and religion. Her mother was wearing Asian clothing.

They left feeling belittled, demeaned and discriminated against.

The facts grounding this complaint are the same as those in the separate complaint by this complainant’s mother. However, at no stage did the complainant in this case seek to purchase any goods from the respondent. She accompanied her mother and did not seek to access the goods in question.

Therefore, she has no locus standi to bring the complaint.

The facts of the matter are as follows.

The staff member had been told to reduce the price on a number of items and was in the course of doing so; manually removing them from one trolley, marking them with the new, reduced price and then placing the item in the discount basket.

It was necessary to complete this operation so that the items would be recognised at the reduced price when presented at the till for payment. Also, the items had previously been sold in packs and were now being offered for sale as individual items.

The staff member in question, who was an eighteen-year-old, third level student engaged on part-time employment became overwhelmed as she was surrounded by a number of customers while she was in the middle of making these preparations. Some customers (not the complainants) snatched items from her before she had completed the necessary preparations for sale.

It is true that a security guard approached the staff member to check that she was alright.

The complainant was not refused the item (of underwear) but was asked to wait until the process just outlined had been completed, as otherwise she would pay the full price for the item. There was no Irish person treated more favourably although some customers may have grabbed items prior to their being discounted.

In any event the complainant’s mother obtained the item she was looking for at the reduced rate and paid for it.

The respondent accepts that what happened to the complainant and her mother represented a lower level of customer service that she was entitled to receive and made an offer to compensate her for this.

However, there is no question of this representing discrimination on the grounds of race or religion.

The complainant accepts that the acts of discrimination were at ‘the lower end of the scale’ and that in respect of the evidence in relation to the religion ground while there was ‘some evidence’ it was not strong.

There were three specific elements to the complaint.

The first was when the complainant lifted an item which had not been processed for sale (which is accepted). The shop assistant told her she would have to wait but then apparently facilitated an Irish customer by pricing an item for sale.

The second was when the assistant allegedly slowed in her task of filling the crate to inconvenience the complainant.

Then, thirdly, the assistant demonstrated discourtesy to the complainant’s mother when handing her an item.

Finally, there is the overall treatment of the complainant and her mother; i.e. the accumulated effect of all of these actions.

For the purposes of this complaint obviously, only actions which were directed at the complainant herself can be considered.

Section 3 (a) of the Equal Status Act 2000 states that discrimination shall be taken to occur;

‘on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

Section 3 (b) (i) extends the possibility of discrimination to;

a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated.

The complainant did not rely on this ‘association’ argument and in any case, it is clear that, in order to ground a complaint under the Act a complainant herself must have directly experienced the ‘less favourable treatment’ that is required to have occurred.

It seems clear from the narrative set out above that throughout the episode in the respondent shop the customer was the complainant’s mother.

The actions by the shop assistant which have given rise to the complaint arose in respect of transactions between the mother and the assistant; the attempted removal of the item from the bargain basket was by the complainant’s mother, the alleged dismissive handing of the item later was to the mother.

Leaving aside the merits of those particular incidents, (which are addressed in my decision in ADJ 26133) it is clear that they did not involve this complainant. She may have been upset by the perceived treatment of her mother and gave evidence of how badly it made her feel at a human level.

The respondent submitted that only the first incident was capable of being construed as discrimination, in that at least there was a comparator, but that incident involved the complainant’s mother only.

Overall, I find that the complainant has not made out a prima facie case.

There is no evidence of any act of discrimination or prohibited conduct against her and her case fails.

For the reasons set out above I do not uphold Complaint CA-00033348-001 and find that the respondent did not engage in prohibited conduct.

Retail sector, equal status, race, religion, discrimination