Complainant

Respondent

Parties

Claudia  Tanase

Dunnes Stores

Representatives

 Represented by Elizabeth Gill BL instructed by Free Legal Advice Centre

 Represented by Murphy & Condon Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00035321-001

18/03/2020

The within complaint was brought by the complainant Ms. T and is linked to ADJ-27557 ( a claim issued by the complainant Ms E (through her mother IE). The complaints were made pursuant to section 21 of the Equal Status Acts. The complainants allege that they were discriminated against on grounds of race and ethnicity by the respondent in the provision of goods and services at the respondent store.

Both complainants are of Roma ethnicity and are Romanian nationals. The first complainant Ms. T, is the aunt of the second complainant Ms. E, who was a 16 year old transition year student at the time the complaint was lodged.

On 2 November 2019, the complainants were present at the respondent store. The first complainant Ms. T was there to buy groceries and was accompanied by her niece. The first complainant picked up a hot chicken from the deli counter along with a baguette and some tomatoes. While she was making her way to the self service cashier to pay for the goods, she was blocked by the respondent’s security guard who took the chicken from her arms. This action alarmed Ms. T and she made her way to the self service till to pay for the goods but the security guard blocked her entrance to the tills took the remaining food, grabbed her arm and brought her to the entrance of the shop. Meanwhile, Ms E, the second complainant, Ms E had picked up some bananas and proceeded to the self service cashier. Similarly she too was blocked by the security guard from purchasing her groceries.

The complainants submit that the security guard told both complainants that they were not allowed to use the self service cashier and that they were barred from the store. The complainants state that when asked why they were barred, the security guard gave no reason. It is submitted that the security guard told Ms. T that he never wanted to see her in the store again and that he was going to call the Gardai. Both complainants waited across the road for the Gardai to arrive, accompanied by Ms IE the second complainant’s mother. When the Garda arrived, the Garda mentioned something about her begging outside the shop. It is submitted that the Garda advised her to make a complaint and to not return to the store.

The first complainant, Ms. T has previously observed persons of Irish ethnicity begging outside the shop and subsequently being allowed into the store unhindered. The first complainant Ms. T had encountered the security guard previously. Notably, on 24 October 2019 (just over one week prior to the subject incident), Ms. T had been refused entry to the respondent’s store on Talbot street by the same security guard, who on that occasion had called her a “Romanian Bastard” and told her “to go back to her own country”. It is submitted that at the time of the subject incident, both complainants were dressed in traditional Roma attire, including full length skirts and were identifiable as being members of the Roma community and of Roma ethnicity. The complainants stated that they were very upset by the incident. It was submitted that neither complainant has revisited the respondent’s store on North Earl street since the incident.

It was submitted by the complainants’ counsel that there is an issue of mistaken identity in that the incident reports submitted by the respondent in response to the ES 1 Form do not relate to the complainants as they were not present at the store on 29 October 2019.

It is submitted on behalf of the complainants that no system has been shown by the respondent to be in place in respect of recording what persons are barred from the premises at any given time. It is submitted that this is not satisfactory as it leads to the incorrect identification of certain persons and allows for discrimination against persons within certain groups.

The complainant’s legal representative submits that the failure of the respondent store to adequately maintain a system of who was barred at any given time appears to have contributed to a situation where two women, by virtue of their ethnicity were barred from entering the premises and accessing the respondent’s goods and services. It is submitted that the failure of the respondent in this respect therefore resulted in the unfair and less favourable treatment of the complainants and was contrary to the Equal Status Acts. The complainant’s legal representative states that the respondent store has not provided any information or documents relating to the training provided to staff members about the legal entitlement of members of the public to access goods and services in accordance with the provisions of the Equal Status Acts 2000-2015.

The respondent vehemently denies the claim of discrimination on grounds of race made by the complainants. The respondent states that the security manager DM has over 6 years experience working with the organisation. DM gave testimony stating that he noticed the complainant in the store, she had a number of grocery items in her hands; he approached her and requested that she leave the store as she had been previously barred from it. He states that the complainant then began to get aggressive and started shouting at him and proceeded to make phone calls. He requested on numerous times that she leave the store but she refused. DM then called the Gardai at Store Street Station. Some minutes later the Gardai arrived and DM advised them of what had occurred.

DM pointed out the complainant (Ms. T) to the Garda and the Garda spoke to the complainant about the incident. The Garda subsequently returned to the store and advised that he had spoken to the lady. The respondent states that Ms. T was barred from the store a number of months prior to this incident for approaching customers in the store begging them to buy her food. The respondent submits that Ms. T had been asked to leave the store on numerous occasions previously. The respondent states that there was no issue with regard to Ms. E in relation to accessing goods and service within the store.

DM stated that he had no interactions with Ms E and there was no issue is respect of her purchasing items from the store.

DM stated that he did receive training in respect of equality matters during the course of his employment with the respondent store and was very cognisant of showing respect to members of the public and adhering to the provisions of the equal status acts with regard to the provision of goods and services.

Section 3(1) of the Equal Status Acts 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 subsection (2)”.

Section 3(2)(h) of the Act 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 complainants had an interpreter at their disposal during the course of the hearing.

I note that while in the written submissions, the complainant made allegations regarding DM in respect of name calling and derogatory comments made to her, at the hearing she stated that it was not in fact DM but a different security guard in a separate store.

Having carefully examined all the evidence in the within claims, I am satisfied on the balance of probabilities that the two named complainants were not discriminated against on grounds of their Roma ethnicity in relation to access to goods at the respondent store. Based on the evidence heard, I find that the Ms T was not served as she had been barred a number of months earlier for begging customers in the store to buy food for her.

I find that the second named complainant was not denied access to purchase goods within the store and I accept the testimony of DM that there was no issue with her accessing goods in the store.

I am cognisant that when testimony was taken at the hearing, there were inconsistencies in the complainants evidence, for example, the complainant Ms. E stated that her aunt (Ms. T) was given no reason for refusal of service however later in her testimony she stated that DM advised her at the material time that she was barred due to begging from customers. In addition, while allegations were made against DM in the written submissions in respect of name calling and derogatory language being used by DM towards Ms. T, it was accepted in testimony at the hearing that she made an error and it was not in fact DM.

I note from the testimony taken at the hearing that DM stated that he had undertaken training by the respondent store which included information on equality matters.

Overall, based on the totality of the evidence, on balance, I find that the respondent’s testimony relating to the matter was more cogent and persuasive. I found the testimony of the complainants, at times, incoherent and inconsistent.

Based on the above reasoning, I find that the two named complainants herein were not discriminated against on grounds of their Roma ethnicity contrary to the provisions of the Equal Status Acts.

I find that the reason for the complainant Ms. T being stopped in accessing goods was because she was barred a number of months earlier for begging from customers in the store.

I find that there was no issue with the complainant Ms. E in accessing goods at the respondent store.

I find that the complainants were not discriminated against on grounds of race contrary to the provisions of the Equal Status Acts.

Race ground, Equal Status Acts, refusal of service