Complainant

Respondent

Parties

Oskar Hangurbadzo

Ladbroke (Ireland) Limited

Representatives

Michael Kinsley BL instructed by  Daly Khurshid Solicitors

Ben Shorten BL instructed by  Lacey Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00038832-001

21/07/2020

The complaint relates to an incident of the 13th February 2020 when the complainant attended the respondent retail betting shop. The complainant asserted that he was discriminated against in being denied a service, i.e. playing the roulette machine. The respondent denies the claim and stated that the service was not provided because of the complainant’s behaviour.

The complainant outlined that the notification was not sent to the respondent within two months of the date of the incident, but there was reasonable cause to allow an extension of time. It was submitted that it was referred to the solicitor in March 2020 at the time of the lockdown. The letter was not sent because of the lockdown, and it was sent as soon as this came to light. It was submitted that this was a common issue encountered by offices.

In evidence, the complainant outlined that he was a Slovak Roma. He said that they wore different clothes and were of darker complexion than Irish people. The other complainant is his fiancé. The complainant said that he has lived in Ireland since 2000 and worked in IT. He described himself as a betting man. He said that there was no previous issue with staff at the respondent branch and he would attend the premises with friends who are also Roma from Slovakia.

In respect of the incident of the 13th February 2020, the complainant said that he entered the premises at 9pm and made his way to grab a betting slip. He was told by a staff member that the place was closed. He replied that the respondent shop was closing at 9.30pm. He heard the person behind the counter say ‘Youse guys are always making a mess at the corner.’ The complainant said that this was clearly a reference to him and his Roma friends. The complainant said that he was not happy and did not expect this.

The complainant said that he replied that he never made a mess. At this time, a female customer entered the shop and was served. The complainant outlined that he then said that this was discrimination. He described that the respondent agents started to laugh. One staff member had been sitting and the other (the shop manager), standing. The complainant outlined that he said that the shop was ‘closed for us but not for others’. He outlined that a male customer then entered the shop and was also served. The complainant felt humiliated and embarrassed. He asked for the name of the area manager and left, very disappointed.

The complainant outlined that in respect of the game he wanted to play, you need a roulette slip to mark numbers and then go to the counter to pay and then you play.

The complainant said that the manager had said the shop was closed as he went to pick up the slip. The complainant said that it was only 9pm and that he had time to play. The manager said ‘we are closed‘. The complainant approached the counter and the manager repeated that they were closed, and that the complainant would not be served. The manager referred to ‘youse’ and the complainant asked who she was referring to.

The complainant said that there was no reason why the roulette would be closed and not the other gambling options. He said that if they were busy, they might close the roulette early but only by five or ten minutes. The complainant outlined that the manager had said that the shop was closed and not just the roulette. The complainant said that it was very annoying that two other customers were served at this time. At this time he did not really know the manager but had no problems with her. He knew the other staff member and had no problem with this person.

In cross-examination, the complainant accepted that he was friendly with the manager. He accepted that he visited the premises with his parents and that he was still a regular customer. It was put to the complainant that the respondent staff had a process of cleaning the shop and on this night, they had already cleaned the roulette area. It was put to the complainant that he had become belligerent and began pointing his finger. It was put to the complainant that he had said to the staff ‘you will do what I say and take my bet’. It was put to the complainant that the manager had said that she would not be spoken to like that and that she would not take the bet. The complainant did not accept this account. He had always been very respectful. He had said that his bet should be taken as it was only 9pm. He accepted that he may have raised his voice. He did not accept that he had pointed his finger or had said ‘you will take my bet’.

It was put to the complainant that the manager had said ‘eh lads we’ve cleaned the area and don’t make a mess’, and that this was a colloquialism and not directed at an ethnicity.

The complainant outlined that he had completed the slip and was going to pay at the counter. He said that the manager told him that the shop was closed and that they would not be serving him. He was pretty sure she would know he was Roma. It was put to the complainant that the manager will say that he was not refused a service and that they had cleaned the area. It was put to him that the refusal came from the complainant’s subsequent reaction.

Evidence of Zuzana Pompova

Ms Pompova said that she is a member of the Roma community. She attended the respondent premises on the 13th February 2020. She approached the door to the shop as her fiancé entered. He was talking to the counter staff, and she heard the staff member say ‘youse’. She said that she heard everything and left crying. She was pregnant and depressed. She heard the counter staff say ‘youse are always making a mess’. She said that there were no problems before. She said that they tended to visit the respondent premises on a weekend afternoon. She said that she had darker skin and tended to wear longer clothes. She said that she heard the word ‘closed’ being mentioned.

In cross-examination, Ms Pompova said that she had not placed a bet on the 13th February 2020 and that there had been no problem before. She said that she had not attended the shop since then.

In closing, it was submitted that matters were raised around dirtying the premises and the premises being closed. It was submitted that the complainants had given evidence how members of Roma community are identifiable. Mr Hangurbadzo’s account was that he went into the store and was told that it was closed. He was then told that ‘youse always make a mess’. There was back and forth and then the complainant was told that he was not being served. It was submitted that it was not credible that the complainant would go off on one just by being told ‘ah lads don’t make a mess’. It was the complainant’s evidence that he was laughed at, and this is obscured in the CCTV footage.

In respect of the burden of proof, it was submitted that the failure to show the full CCTV meant that the respondent could not defeat the finding that a prima facie case of discrimination had been raised. No comments were made to other customers and no restrictions were imposed on these customers. It was submitted that the failure to reply to the notification allowed an inference to be drawn. It was submitted that the CCTV was more consistent with the complainants’ account. Ms Pompova had turned on her heel and left on hearing what was said to Mr Hangurbadzo. It was submitted that while she did not get to the point of seeking a service, she did not have to. It was submitted that there was consistency between their evidence

It was submitted that there was a reference to laughing in the complaint form. There was a statutory requirement to reply to the ES1 form and inferences could be drawn from the failure to reply. In ADJ 23470, the adjudication officer had accepted that the claimants were identified as members of the Roma community.

The manager gave evidence. She has worked for the respondent since March 2018 and was promoted in 2019 and moved to a different place of work. She knew the complainants and they had a good relationship especially with Mr Hangurbadzo’s mother. She had spoken to Mr Hangurbadzo’s mother about the pandemic on the day in March 2020 the shop closed. The shop had closed on St Patrick’s Day 2020 and reopened in July 2020. She said that Mr Hangurbadzo and his parents attended on the day the shop re-opened. 

In respect of the 13th February 2020, the manager said that she, a colleague and a cleaner were present. The manager said that when the complainant entered the shop, she had said that they were closing soon and asked that he not dirty the roulette area. She said that her words were ‘please lads we are closing soon please don’t dirty the area’. She said that the complainant was not his usual polite self and that on this night, he was uptight. She said that the complainant came over to her and said that she would take his bet. She said that she was shocked as it was out of character. She said that he could not speak to her like that, and she would not take his bet.

The manager said that the complainant returned to the counter on two occasions and kept asking for the name of the area manager. She directed him to customer services but later relented and gave the area manager’s name. She was not allowed to give the area manager’s name but had relented. The manager said that had things calmed down she would have taken the bet.

The manager said that the complainant never presented a docket to her, and he did not have a docket in his hand. She said that she did not know that they were Roma or from Slovakia.

The manager said that in respect of the roulette, she would check whether there was sufficient time to place a bet before she took a bet. The store closed at 9.30pm. On one occasion, many dockets had been left behind in the roulette area and she had said to the customers ‘come on lads’.  This was a popular area in the store and customers had complained about the cleanliness.

The manager said that Ms Pompova never tried to place a bet and she did not speak with her. She said that she knew the woman who entered the store and she had come in to collect her husband’s pay out. She did not know the man.

In cross-examination, the manager said that she did not know where the complainants were from. She was aware that they were not Irish because of their accent. The manager said that she had said to the complainant ‘I’m closing soon so please don’t make a mess,’ and he became irate. It was put to the manager that he had told her that there was time to place a bet and that he then approached the counter. It was put to the manager that this evidence was in line with the CCTV. The manager replied that the complainant took a betting slip and went to the high table, but he did not come to the counter with a slip. He approached the counter with the wrong docket. She accepted that the store was not closed, and other customers were served. She accepted that she had not said to the other customers that they should not make a mess.  She accepted that the complainant and his friends regularly played bingo and the roulette machine in the corner of the store.

The manager denied laughing at the complainant and said that she would not do that. She said that this was no laughing matter. She said that following the incident, she contacted her area manager straight away and told her what happened. She had provided a statement following the solicitor’s letter in June 2020.

In closing, the respondent outlined that the hearing was the first time that laughing had been mentioned. It was submitted that the letter from Ms Pompova was incorrect as she had not entered the store or approached the counter. It was submitted that the manager is a hardworking Dublin lady who was interested in the complainants and their family. The manager would have said the same thing to everyone. There was nothing in Mr Hangurbadzo’s dress to distinguish him and Ms Pompova was dressed in ordinary winter clothes. Referring to ADJ-00023470, this was a case where, if a prima case was established, the respondent discharged the inference of discrimination because of the behaviour of a claimant. The complainants were established customers and have been to the store since the incident.

In July and August 2020, Mr Hangurbadzo and Ms Pompova, lodged complaints to the Workplace Relations Commission pursuant to the Equal Status Act. The complaints were of discrimination on grounds of race and membership of the Traveller community. They related to an incident which occurred on the 13th February 2020.

Notification per the Equal Status Act

Solicitors for the complainants wrote to the respondent on the 25th May 2020, setting out what had happened from their point of view. The letter stated that the complainants had been denied a service on grounds that they were members of the Roma community.

There can be no doubt that the correspondence sets out the nature of the allegation and refers to seeking redress pursuant to the Equal Status Act. It is notification as required by section 21(2) of the Equal Status Act.

The notification was sent on the 25th May 2020 and not within two months of the date of the incident, as required by section 21(2)(a). The notification was sent within four months of the date of the incident. I find that there is reasonable cause to direct that the notification be deemed as sent within the required period, a direction per section 21(3)(a) of the Act.

I find that there was reasonable cause because this occurred around the onset of the pandemic and office staff having to work from home. It is reasonable to take into account the delay ensuing from these circumstances. I note that the respondent was aware of the incident on the date in question and incurred no prejudice in only being sent the notification on the 25th May 2020.

Discrimination and discriminatory grounds

The interpretation section of the Equal Status Act (section 1) defines ‘prohibited conduct’ as ‘discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act.’

Discrimination is defined as less favourable treatment on grounds of one or more of the discriminatory grounds (section 3). The grounds cited in this case are race and member of the Traveller community. The Equal Status Act, as amended by the Equality Act 2004, transposes the Racial Equality Directive (Directive 2000/43/EC). This directive applies both to discrimination in the workplace and discrimination in respect of the provision of services. The directive addresses discrimination both on race and membership of the Traveller community, including Roma. The grounds claimed in this case have a directive underpinning.

Scope of the evidence

I have based my consideration of this case on the evidence adduced at the hearing, including the CCTV footage. The parties exchanged correspondence after the hearing regarding the contents of the complaint form, in particular in respect of the issue of laughing. Mr Hangurbadzo gave evidence that the manager laughed at him, and the manager denied this in cross-examination. The allegation of laughing is before the adjudication, to the extent that it was addressed at the hearing.

The complainants asked that inferences be drawn against the respondent for not replying to the letter of the 25th May 2020. Again, I assess this case on the evidence presented and I do not draw an inference from the respondent not replying to the letter.

Burden of proof

Section 38A(1) provides that ‘where in any proceedings facts are established by or on behalf of any 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.’

Section 38A was inserted to the Equal Status Act to give effect to the burden of proof promulgated in EU law, specifically Article 8 of the Racial Equality Directive (Directive 2000/43/EC). Section 38A was inserted by the Equality Act 2004, which inserted the equivalent provision to the Employment Equality Act (section 85A). It is well-established that the Labour Court’s interpretation of section 85A has been applied to consideration of section 38A. 

As set out by the Labour Court in Southern Health Board v Mitchell [2001] ELR 201, the burden of proof in equality law requires the complainant to set out facts of such significance that raise a presumption of discrimination. In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court referred to the complainant establishing facts from which discrimination may be inferred and that ‘mere assertions unsupported by evidence’ cannot be elevated to allow an inference of discrimination to be drawn.

A claimant in an equality claim has three questions to address. The first is that they fall within the purview of a discriminatory ground albeit this could be something that exists, existed in the past, exist in the future or be imputed to them or also, they have an association with the ground. The second is that they incurred less favourable treatment (in direct discrimination). The third is that the less favourable treatment was ‘on grounds of’ the discriminatory ground.

Section 38A and whether a claimant has raised a prima facie case of discrimination relates to the third question: ‘on grounds of’. The first two questions are decided on a balance of probabilities, i.e. whether something is more likely than not. The third, ‘on grounds of’, is subject to a burden of proof that is less onerous and easier for a claimant to meet.

Nothing in the statute or in Mitchell and Valpeters makes this an onerous test. What those cases mean is that the claimant must go some way along the line of showing that the less favourable treatment was ‘on grounds of’ their membership of, or association with, a ground covered by the Act. The point of the burden of proof in section 38A is that the claimant does not have to go as far along the line as a plaintiff in seeking to prove causation on the balance of probabilities in a civil claim.

The reasons for this are very clearly explained in the case law and set out with great clarity in ‘Reversing the burden of proof: Practical dilemmas at the European and national level’ Farkas and O’Farrell, European Commission Thematic Report, 2014. Akin to the ‘peculiar knowledge’ principle, discrimination is rarely overt and the discriminatory reason for any action, arising, for example, from a bias or stereotype, will rarely be discernible to a claimant. The point of the burden of proof in anti-discrimination law is that a claimant is unlikely to be able to prove causation on a balance of probabilities, and the effect of section 38A etc is that they do not have to.

Note that this relates to the general application of the burden of proof to causation in equality claims, but a claimant who is pregnant and dismissed from their employment establishes a prima facie case of discrimination simply by being pregnant and being dismissed; it falls on the employer to show that pregnancy was not a factor in the dismissal.

Note also that the equality Acts allow inferences to be drawn from the failure of a respondent to provide ‘material information’ sought via section 21(2)(b) of the Equal Status Act or section 76 of the Employment Equality Act. ‘Material information’ includes reasons for any act or omission, relevant practices or procedures and information about comparators.  

The question of what constitutes a ‘fact of such significance’ that raises a presumption or inference of discrimination is very much determined by the facts of the case. As set out in the case law, there is no closed category of fact that could lead to a presumption of discrimination (Valpeters).

What determines whether a fact is of ‘such significance’ will depend on what information the claimant can be expected to have to hand and what information is within the exclusive or near-exclusive knowledge of the respondent.

In Mitchell, the claimant already had the information to hand regarding her qualifications and those of the other candidates. While the claimant said that this information raised the presumption of discrimination, the Labour Court, however, did not agree that the claimant’s qualifications were superior to those of the other candidates. While the Labour Court criticised there being an all-male interview panel, this was not sufficient to raise a presumption of discrimination. The Court held that the claimant had not established facts that raised an inference of discrimination.

The questions in Valpeters were whether the claimant was subject to less favourable treatment on grounds of him not being Irish in being designated as an independent contractor (and not as an employee) and his subsequent dismissal. The employer did not attend the hearing. The Labour Court held that the claimant had not provided evidence of causation and his section 76 questionnaire did not ask about the claimant being designated as an independent contractor. The Labour Court held that how the employer treated other workers was not within the exclusive knowledge of the employer and could have been ascertained by the claimant. As stated in the oft-quoted part of this determination, mere speculation or assertions, unsupported by evidence could not be elevated to a factual basis upon which an inference of discrimination can be drawn. It should be borne in mind that this dicta arose in the context of where knowledge pertaining to discrimination was not in the exclusive or near-exclusive purview of the respondent (i.e. how other workers were treated).  

Valpeters and Mitchell are clear that what amounts in any particular case as a fact of such significance that raises an inference of discrimination must take account of three factors. The first factor is whether the relevant facts are within the exclusive or near exclusive knowledge of the respondent (in such case, the burden quickly shifts to the respondent as they have the means of knowledge to dislodge, or not, the inference of discrimination). The second factor is what evidence and information the claimant can be expected to ascertain, for example how others were treated. The third factor is what response the respondent gave to questions seeking ‘material information’ posed by the complainant of the respondent per section 21(2)(b) of the Equal Status Act or section 76 of the Employment Equality Act. Both statutes allow for inferences to be drawn from a failure to respond or from a response which is ‘misleading or equivocal’ (Valpeters).

It should also be noted that even where the claimant has raised a presumption or inference of discrimination, it is open to the respondent to show that there was no discrimination. Where this occurs, the determination is that the respondent did not discriminate against the claimant. The fact that the claimant had established a prima facie case of discrimination is not a finding of discrimination. There is only a finding of discrimination where the respondent fails to rebut the inference or presumption of discrimination.

Findings in respect of these complaints

There is no dispute that the respondent was aware that the complainants were not Irish and were from eastern Europe. I find on the balance of probabilities that the respondent witnesses were aware that the complainants and their families were of Roma descent. After all, they were regular customers and on other occasions accompanied by friends and family. There is also no dispute that Mr Hangurbadzo did not play the roulette game on the night in question. There is a factual dispute as to what precisely happened and on causation, i.e. was what happened was on grounds of race and membership of the Traveller community.

Mr Hangurbadzo entered the respondent store at 9pm on the Thursday evening in question. He wished to play a game of roulette. Ms Pompova was also present but stayed at the door to the premises. There were three members of staff present (the manager and two others, including the cleaner). What happened is in dispute, but it was not disputed that two customers entered the store during the time that Mr Hangurbadzo was in the store.

The evidence of the complainants is more in line with the CCTV footage adduced at the hearing. Mr Hangurbadzo entered the premises. He saluted the counter staff and was calm. He took a piece of paper to play the game.

It was over the next few minutes that the complainant became agitated as he approached the counter on three occasions. It is clear that the complainant became more agitated as he was not being served during the time that two customers entered the premises and completed their transactions. While those other customers were not using the roulette machine, they were not impeded in accessing a service. They were served in a routine fashion at the time the complainant was not being provided with a service. I appreciate that these events were some time ago, but the manager’s evidence was not correct that the complainant was aggressive in demanding that the respondent take his bet. This is not supported by the footage of the complainant saluting staff on entering the store and his business-like demeanour in trying to complete the slip quickly.

The fact of two customers being served while the complainant was not served is a fact that allows an inference or presumption of discrimination to be drawn. This fact leads to the question of whether the principle of equal treatment was applied to the complainant. Per the anti-discrimination burden of proof, this is a question for the respondent to answer.

I find that the respondent has not rebutted the presumption of discrimination. I reach this finding on the consistency of the evidence of both complainant and Ms Pompova and the consistency of this evidence with the CCTV footage. I find that Mr Hangurbadzo was initially very calm and became agitated as it became clear he was not being served. He became agitated when others were served, even though it was so late in the evening. I do not accept that the complainant was aggressive or demanded that he be served. He did not point his finger. The agitation was understandable and does not in any way permit the respondent to justify the denial of service or to defend this claim.

I note that this was also late on a Thursday evening when the complainants were on their own and not in the company of family or friends. Even if there were concerns about a previous occasion, this was clearly a very different situation, where Mr Hangurbadzo was seeking to play one game before closing. I accept the respondent’s evidence was that this was not bias against the complainants or their Roma heritage. It was, however, a denial of a service on grounds of a stereotype. The service was not provided to the complainant on grounds of a stereotype, i.e. persons of Roma heritage and an unfounded association with messiness in the store.

Taking account of the circumstances, I award compensation of €7,500. This is compensation that is proportionate, effective and has deterrent effect. I appreciate that the complainant had frequented the respondent premises both before and after the incident (once it could re-open during the pandemic), but this redress reflects the gravity of denying a person a service on grounds of race and the Traveller community ground.

CA-00038832-001

I direct that the notification be deemed as sent within the required period, a direction per section 21(3)(a) of the Equal Status Act.

I decide that there was prohibited conduct in denying the complainant a service and I order the respondent to pay to the complainant redress of €7,500 for the effects of discrimination.

Equal Status Act / burden of proof / facts that lead to the presumption or inference of discrimination / Racial Equality Directive