Complainant

Respondent

Parties

Ade  Olanrewaju

Synergy Security Solutions Ltd

Representatives

  self

 HR Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00040636-001

27/10/2020

The allegation of discrimination concerns a dispute about whether or not a disabled carpark sticker was visible; when a security guard requested the complainant to  move his car out of a marked disabled space, into an adjoining free carpark space. It is also alleged by the complainant that the guard was disrespectful and aggressive towards him. He states that he was left in a state of shock and trauma arising from his interactions with the guard. The strength of feeling about this complaint relates to alleged statements  made by the security officer to the effect that the complainant was not disabled; the inference being that he was just trying it on. CCTV footage of the incident was viewed concerning the parking of the car and subsequent interactions between the complainant and the guard. The complainant’s wife gave evidence to support his position as did an acquaintance of the complainant who happened to be in the shopping centre at the time the complainant was leaving the car park. The security guard has since left the company and works at the time of the hearing as a care assistant in a nursing home.

On the 19th of June 2020 at Wilton Shopping centre, the complainant was parked in a disabled car park space. The security officer came up to him and stated that the complainant wasn’t disabled. The complainant ignored the comments; however, after a few minutes, he returned and took the complainant’s registration number and said, ‘You are not disabled’. On the way out of the car park the complainant saw the guard and said to him that he should look at the dashboard before making an allegation. His family at this time were in the car with him. Also an acquaintance passed by and attempted to calm matters down between the complainant and the officer. The complainant in turn made a complaint to the shopping centre and security company claiming that he was discriminated against.

On the 19th of June 2020 at about 12.55 the guard noticed that a car was parked in one of the spaces allocated for disabled drivers. The complainant states that he checked the dashboard and there was no permit. As there was no disabled pass on display, he respectfully asked the driver to move into the adjoining space that was free. After 30 minutes the officer went back again to the space, he checked if there was permit on display and states that there was not.  The officer said nothing to the driver and took note of the car registration number down. As he was walking towards the complainant’s Jaguar pulled up beside him, his family was in the car at this time. The complainant pulled down his window and stated that the officer didn’t know his job. There was still no permit on display. At this point the officer alleges that  the driver and his wife verbally abused him. They threatened to report him. An acquaintance of the driver arrived on the scene and asked what was going on, the officer explained what had occurred. The complainant disagreed with this account and alleged that the officer was disrespectful to him and the acquaintance of the complainant also became annoyed with the officer and asked him to go away. The officer stepped away from the car and the complainant drove away.

No discrimination or harassment has occurred.

The complainant has a disability.

Under oath the complainant stated that the permit was not permanently fixed to the screen. He would display the permit when he parked the car.

The guard maintained that he was respectful to the complainant and courteous. The witnesses on behalf of the complainant deny this.

Section 38 (A) of the Equal Status Act 2000 as amended states:

38A. — (1) Where in any proceedings 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.

In the first instance the complainant carries the burden of proof to establish a prima facie case. The Labour Court has detailed what this means in a number of employment equality cases and the principles apply to equal status complaints:

In a recent case Public Appointments Service and Mr Bernard Lester [EDA 2022] the Court detailed what this meant:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these 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 is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

It is clear that there is a direct conflict in evidence. This case turns on the fact concerning whether or not the parking permit for a disabled driver was or not on display at the time when the Jaguar Car was parked in the disabled car park space. There were a number of separate exchanges between the parties, and the exchange witnessed by the wife of the complainant and an acquaintance of the driver, occurred when the complainant was leaving the car park and do not tend to show one way or another whether the permit was on display or not when the car was parked.

The burden of proof is on the complainant to make out a prima facie case in the first instance. The CCTV footage does not show whether or not a permit was on display.

Section 2 of the Act defines Prohibited Conduct as:

“prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act;

And section 11(5) states:

(5) ( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

 being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

A question that must be asked did the conduct complained off amount to harassment as referenced in the Act.

The evidence of the security guard under oath was convincing and credible. His job was to make sure that the disabled car park spaces were left free for those that required them. He had no axe to grind against the complainant, if he had seen the permit he would  not have followed through with a second check to see if the permit was on display.

The complainant has confirmed under oath that the permit was not fixed onto the windscreen, rather was placed on the dashboard when he was parking.

The complainant carries the burden of proof to establish facts that give rise to an inference of discrimination and prohibited conduct. He relies on the testimony of his wife and an acquaintance who confirm that a heated exchange between the security guard and complainant took place as the complainant left the car park. However, the beginning of the exchange took place much earlier when the driver parked his Jaguar in a disabled car park space. He was alone in the car when approached by the security guard. A second interaction occurred when the security guard noticed that the complainant was still parked in the space and he contends that there was no permit visible.

It is not a fact in issue that the complainant has a disability. The onus is on the permit holder to show that permit and to make it known that he possesses a valid permit. The purpose of the permit is to make sure that a person with a disability can access services. It is clear from the CCTV that there was an adjoining space free. A person can be challenged if they don’t show a permit or if the permit is out of date; this is to ensure that persons who possess a valid permit can avail of the space.

A request to see a permit does not have to escalate into a matter of honour or respect for a person’s standing based on their word. On the facts, it would appear that the complainant took issue with the fact that he was asked to show his permit. That does not amount to discriminatory behaviour or harassment. The security guard was doing his job and, on the evidence, I believe that he did it  professionally and courteously. An exchange did occur when the complainant was leaving the car park and that exchange was initiated by the complainant. On the evidence given under oath the complainant has not presented a credible or persuasive case that established primary facts of significance that tend to show that discrimination may have occurred.  As the complainant has not demonstrated that facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred, I determine that the respondents in their capacity as employer and manager of the Wilton Shopping centre did not engage in prohibited conduct.

A request to see a permit does not have to escalate into a matter of honour or respect for a person’s standing based on their word. On the facts, it would appear that the complainant took issue with the fact that he was asked to show his permit. That does not amount to discriminatory behaviour or harassment. The security guard was doing his job and, on the evidence, I believe that he did it  professionally and courteously. An exchange did occur when the complainant was leaving the car park and that exchange was initiated by the complainant. On the evidence given under oath the complainant has not presented a credible or persuasive case that established primary facts of significance that tend to show that discrimination may have occurred.  As the complainant has not demonstrated that facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred, no prima facie case has been made out that requires to be rebutted. As no primary facie case has been established;I determine that the respondent Synergy Security Solutions Ltd and  Wilton Shopping did not engage in prohibited conduct.

Harassment -Discrimination-Prima Facie Case