Complainant

Respondent

Parties

Jessica  Bowes

Dunnes Stores

Representatives

  N/A

Deirdre Keane BL instructed by Murphy & Condon Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041454-001

07/12/2020

The Complainant stated that she was discriminated against on the family status ground on 29 April 2020 when the Respondent refused to allow her to enter a supermarket with her children and treated her differently to a married person with children.

The Complainant stated that when she arrived at the supermarket she was told by the security guard that she couldn’t bring her children in. She explained to him that she was a single mother and that she had no choice but to bring them in. She stated that he then called the Store Manager and asked him if he could let her in because she was a single mother. While the Complainant was waiting for the manager, she stated that she saw a former work colleague of hers being allowed enter the store with her husband and two children after a brief chat with a security guard. 

When the Store Manager arrived, the Complainant told him that she had been asked to wait for his permission to bring her daughters inside. The manager in reply stated that they were trying to reduce the numbers of shoppers with children and asked her if she could not get someone to mind them. The Complainant explained to him that she was a single mother working in an emergency department and that any help she could get in terms of childcare was used so that she could go to work. The Store Manager explained that they had to keep the other shoppers and staff safe and the Complainant asked him why her former colleague was allowed enter the shop with her husband and her two children and challenged him on why one of the adults in that family wasn't asked to stay outside with the two children. She explained further that such a course of action was what the HSE said should happen and that his behaviour towards her family wasn't in line with this. The Store Manager advised her that he didn’t see that family.

The Complainant stated that she asked him again what the policy was, and he explained that they had to use their discretion because they were trying to limit the amount of shoppers in

the store. She then asked him if she and her children were allowed in and the Store Manager stated that he could not stop her. The Complainant stated that she was so upset at this stage that she decided to leave the store and did her shopping elsewhere.

The Respondent asserted that the purpose of the queueing system and arrangement to have security personnel in attendance to monitor the same was to promote compliance with the Covid-19 directions then in place and required to be implemented by retail stores such as the Respondent’s Store at Mill Shopping Centre. The queue was designed to regulate the number of persons in the store at any one time and seek to regulate the number of persons attending by seeking to promote as far as possible that as few as possible from a family would enter the store and the Security Guard asserts that he spoke to the Complainant to request that in future she would try and arrange attendance on her own.

The Respondent stated that when he spoke with her, he was entirely unaware of her status as a single mother and his approach and discussion with her was without knowledge that she was a single mother and accordingly there could never have been any question of her being discriminated on that basis. In addition, the Security Guard who spoke to the Complainant was not directed or authorised to refuse entry but to communicate that customers should shop singly where at all possible and this information was communicated on a regular basis via tannoy also.

The purpose of the queueing system and attempts by the store to limit the number of persons entering was to ensure compliance with its obligations in respect of seeking to limit the spread of Covid and in compliance with the directions then in place and in respect of which it was required to comply and no bias towards the Complainant either on the basis of her status or for any other reason was maintained or shown by the Security Guard who initially spoke with her or any other staff members who subsequently did so.

It was also stated that the Complainant became extremely angry and irate and ultimately chose not to enter the store but to leave voluntarily prior to doing so. The Respondent believed that this incident occurred due to a misunderstanding and misinterpretation by the Complainant as to what was being communicated to her by the Security Guard.

Subsequently, personnel from Customer Services made contact with the Complainant and indicated that they would arrange to get her intended purchases. The Complainant then furnished a list of what she had intended to purchase and this was obtained from the store and delivered to her without a charge. The value of such goods amounted to €130.00.

Preliminary Issue

The substantive issue in this case relates to the alleged discrimination of the Complainant by the Respondent on the family status ground on 29 April 2020.  The Complainant did not refer her complaint under the Act until 7 December 2020 however, by which date the period provided for in section 41(6) of the Workplace Relations Act 2015 had expired.

The Complainant is seeking to extend time within which to bring her complaint. She submits that there was ‘reasonable cause’ for the delay in referring her complaint given that she was working in the emergency department of a hospital during the pandemic and was also caring for three young children on her own.

Section 41 of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Reasonable Cause

The Labour Court has considered in some detail in many of its previous determinations the correct meaning to be ascribed to the term ‘reasonable cause’ as the test for the justification for a delay on the part of a Complainant in referring complaints at first instance under employment legislation.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, the Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay.

The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.

The claimant’s failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In Salesforce.com v LeechEDA1615 the Court – having referred to the Determination in Cementation Skanska– stated:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

Findings

In the instant case, the alleged contravention occurred on 29 April 2020 and the complaint was made to the WRC on 7 December 2020.  While I noted that the Complainant was provided with a copy of the complaint form by the WRC in June 2020 and that she waited a further six more months to refer the matter and not by 28 October 2020, I have decided to extend the time period and will entertain the complaint, given her particular personal circumstances and the fact that the time period in which she did not submit the complaint form coincided with a global pandemic. I also had regard to the fact that the Respondent did not object to an extension of the matter and was keen that I issued a finding in respect of the allegations of prohibited conduct.

Substantive issue

Establishing a prima facie case of Discrimination:

Section 38A of the Equal Status Acts (2000 – 2011) sets out, as follows, the burden of proof which applies in a claim of discrimination or:

“Where in any proceeding’s 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.

This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

This provision clearly puts an onus on a Complainant to provide evidence from which it may be presumed that the prohibited conduct occurred. This concept is commonly referred to as establishing a prima facie case. It requires a Complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in their particular situation. Should a Complainant be successful in establishing a prima facie case of discrimination, the burden of proof then shifts to the Respondent to rebut the inference of discrimination raised by the Complainant.

 The requirements placed on a Complainant in establishing a prima facie case of discrimination were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

In establishing a prima facie case of direct discrimination, the Complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

With regard to the first point above, I am satisfied that the Complainant, in the within case, is a single parent and that she had a different family status to the comparator, who was a married former colleague of who had children with her and who, unlike the Complainant, was allegedly allowed into the Respondent’s supermarket by a Security Guard of the Respondent on 29 April 2020.

In relation to the second point above, I note that section 3 (1) of the Equal Status Act prohibits discriminatory conduct on ten grounds in the provision of services or the disposal of goods and that included amongst the grounds is family status.

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

I note firstly that there was a dispute between the two parties over what was said by the Security Guard to the Complainant when she came to the top of the queue. Specifically, the Complainant said that the Security Guard told her that she could not come into the supermarket with her children while the Security Guard denied this and said that he had told her to try to avoid bringing the children the next time she came shopping because they were trying to reduce the numbers in the store as well as the queuing times.  

Even if I accept that the Complainant was told by the Security Guard that she could not come into the supermarket because she had two children with her, which for the avoidance of doubt I do not, she stated in her evidence that she said in reply to him that she was a single mother (my emphasis).  It is clear therefore that the Security Guard did not know that the Complainant was a single mother when he initially spoke with her, and according to the Complainant, told her that she was not allowed into the store.

In the absence of any evidence to suggest that the Security Guard knew of the Complainant’s family status, when he allegedly told her that she could not come into the supermarket because she had two children with her, or any evidence to show that the other two staff members with whom she engaged made any comments which could be considered discriminatory, I find that the Complainant has not established a prima facie case of discrimination.  

As the Complainant has not established a prima facie case of discrimination, I find that the Respondent did not engage in prohibited conduct. 

Family status;