Complainant

Respondent

Parties

Khalda Amjad

Primark Limited Pennys

Representatives

Michael Kinsley B.L. instructed by Lombard, Cullen and 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-00033356-001

20/12/2019

The complainant and her daughter (who has made a separate complaint) say that there were the subject of religious and racial discrimination while shopping.

The incident occurred in the respondent shop in Dublin on July 2019 19th between 11am and 12pm.

The complainant had entered the store with her daughter.

A bargain crate was being set up as they walked in but they continued around the shop. She picked up a number of items to try on and on the way to the fitting room they noticed that the reduced crate was being stocked. This was being filled from another crate by a shop assistant.

They went over towards the bargain crate and waited for five minutes or so but felt that the employee seemed to slow down filling up the bin as they were waiting.

They then left that area and went to the fitting rooms and returned some ten minutes or so later to the bargain bin.

The assistant was still putting stuff in the bargain bin from a crate which involved removing some of the packaging from each item.

They pointed to one particular packet in the create that they wished to purchase, and the assistant simply said that she could not give it to us. 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 daughter.

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 over the item was rude; she had not looked at her as she handed over the item.

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”.

In her direct evidence the complainant said that she had been ‘very embarrassed’ by what happened.

In response to questions from the respondent as to whether she had felt upset or discriminated against she said only when she returned home and spoke to her husband.

Counsel for the complainant submitted that discrimination is rarely overt and that there were sufficient facts here to move the burden of proof on to the respondent, and that they failed to discharge it.

The facts grounding this complaint are the same as those in a separate complaint by this complainant’s daughter.

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 either of 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 daugher 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 daughter 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 episodes giving rise 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.

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 daughter when handing her an item.

Finally, there is the overall treatment of the complainant (and her daughter).

I accept fully that the employee of the respondent could have been in no doubt about the nationality of the complainant, at least in the negative sense that she was probably not Irish.

The respondent was dressed in the style of a person from India or Pakistan and while, of course, some people dressed in that style may technically be Irish, her ethnicity was sufficiently obvious to ground a complaint under this Act, should the evidence be sufficient to support less favourable treatment.

I find that there is absolutely no basis for a complaint on the religion ground.

While the complainant is, in fact a Muslim she was not dressed in the style generally understood in Ireland to be associated with the Muslim faith. She had no face covering, and her headscarf was worn loosely etc.

Her daughter, who accompanied her was not wearing any head or face covering.

The actions by the shop assistant which have given rise to the complaint arose in respect of transactions between the complainant and the assistant; the attempted removal of the item from the bargain basket being stopped, followed by the more favourable treatment of a customer presumed to be Irish, the slow filling of the basket and the alleged dismissive handing of the item later to the complainant.

The respondent submitted that only one incident, the first one was capable of being construed as discrimination, in that there was a comparator.

I accept this.

It is clear that the contention by the complainant that the shop assistant ‘simply said’ that she would not give it to the complainant is not correct.

It was accepted that the shop assistant was engaged in a process which required items to be broken down form packages and re-priced for sale at the new, lower prices, so it is clear that this did not constitute a ‘simple’ refusal to allow the complainant to proceed with the purchase.

The respondent accepted that the shop assistant’s actions had fallen below its own standards of customer service and offered to compensate the complainant; an offer she rejected. In my view the characterisation of events by the respondent is credible.

Nonetheless, they do (on the race ground only) raise an inference of discrimination sufficient to establish a prima facie case. No prima facie case was made out on the religion ground.

I have therefore carefully considered the respondent’s submission and whether it meets the test of ‘cogent evidence’ necessary to discharge the burden of proof.

Looking at the facts of the case, and the submissions of the respondent the assertion by the complainant that the acts complained of are at ‘the lower end of discrimination’ may be overstating things somewhat.

The assistant’s actions did indeed fall short of good customer service standards but it seems to me just as likely than a Irish customer might have been on the receiving end of her impatience; they were not directed at the complainant on the grounds of her ethnicity and no connection was made between the two; the treatment of the complainant and her race or ethnicity.

The alleged more favourable treatment of the presumptive Irish customer is much too flimsy and speculative and several steps removed from the basis necessary to ground a complaint of less favourable treatment under this Act.

The other incidents are even more so, and further lack the presence of a comparator.

The complainant undoubtedly had an unpleasant experience in the course of her visit to the respondent store. It is interesting that, according to her evidence at no stage in the course of her visit did she link this to an act of discrimination while she was there, although it is not necessary that she do so.

In the scale of things, it was a relatively mild one. It is necessary to establish some nexus between the protected ground and any alleged act of less favourable treatment.

I find that any unfavourable treatment was not on account of her race or religion and no prohibited conduct took place.

For the reasons set out above I find that the respondent did not engage in prohibited conduct and I do not uphold Complaint CA-00033356-001.

Equal Status, discrimination, race, religion.