Complainant

Respondent

Parties

Julia  Joyce

Poundland Limited T/A Dealz

Representatives

Harry Mooney & Co.

 Miley & Miley LLP Solicitors . Ms. Kate Conneely, B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038492-001

02/07/2020

The complainant contends that she was discriminated against on the basis of her membership of the Traveller community and on the basis of her disability contrary to the provisions of the Equal Status Acts 200-2018, when impeded in shopping at the respondent’s store on the 8 January 2020, the date of the last instance of discrimination.

 She submitted her complaint to the WRC on the 2 July 2020.

Complaint of discrimination on the grounds of disability.

Complainant’s evidence.

The disability

The complainant has epilepsy, has had a stroke, has literacy issues and lives in supported accommodation. At the time of the incident on 8 January 2020, she was a patient in Beaumont Hospital.

The act of discrimination.

The complainant shopped in the respondent’s store on 8 January 2020. She took her items to the till which were unattended. She went to the self-service checkout. She was unable to use it. She asked a shop assistant to help her. The assistant told her to get out of the shop because she did not know how to scan items. She was very rude towards the complainant. The complainant’s brother spoke to the assistant. The complainant gave the assistant the money for the items and the assistant then operated the till.

Cross examination

The complainant confirmed that the assistant came to her when she asked for help. She cannot recall who scanned the items for her. She cannot remember if she gave the money for the items to the shop assistant. She suffered a stroke after the incident on the 8 January, and her memory is now poor.

The complainant’s solicitor states that the complainant’s evidence demonstrates that she was treated in a very unsatisfactory manner. The shop assistant’s treatment raises an inference of discrimination on the grounds of disability.

In response to the adjudicator’s question about the obligation to satisfy the notification requirements found in section 21 of the Act of 2000, the complainant’s solicitor states that the complainant’s letter of the 27 January to the respondent and her brother’s letter of same date satisfy the notice requirement. They contain the allegations and indicate an intention to seek redress -as evident in the statement,” I have spoken to my legal team”. In response to the respondent’s submission that the letter of 27 January 2020 failed to disclose the probability of a referral of a complaint to the WRC, the complainant’s solicitor advised that the complaint was not in receipt of legal advice at that stage.

In the alternative, the complainant’s solicitor submits that the requirement to notify as per section 21 can be set aside if special circumstances exist. The special circumstances are that the complainant has profound disabilities, literacy issues, and the complainant at that stage did not have legal advice. The respondent offered the complainant an unconditional apology.

The complainant’s solicitor refutes the contention that the respondent was prejudiced by the absence of the ES.1 form as the respondent was notified within one week of the incident by the complainant.

The complainant’s obvious difficulties with scanning the items coupled with a shop assistant reproaching a customer in need of assistance raises an inference of discrimination on the grounds of disability. The respondent failed to offer her reasonable accommodation by assisting her to complete the purchase of goods. The complainant was told to leave the shop.

Witness 2.

The witness is a brother of the complainant.

He heard the shop assistant giving out to his sister at the till. The witness told the assistant to desist from such behaviour. The shop assistant stated that the witness’s sister should be well able to work the self-service checkout and insert the money. The witness told the shop assistant that his sister could not read. The shop assistant did not give his sister a receipt. The witness called for the manager who came, apologised to him and gave him a receipt. The witness told the shop assistant that his sister was very shaken, upset. The shop assistant said, “have a look at her face” He told the assistant that his sister was not well and the assistant responded that she was unaware of this.

Having paid for the items and having received a receipt, he left the shop with his sister.

The witness sent a complaint to the respondent on 27 January 2020.

He received an apology and a voucher for €10 on 31 January 2020.

Cross examination

The witness stated that he thinks the shop assistant scanned the items for his sister.

Complaint of discrimination on membership of the Traveller community ground.

 The complainant cites the failure of the shop assistant to assist her when attempting to scan goods, details of which the complainant has set out in the complaint of discrimination on the disability ground. In addition, the complainant states that the shop assistant called her “a gypsy” when the complainant was trying to scan the items. The complaint was very upset at this remark.

The complainant has not shopped in the store since that date.

The complainant’s solicitor states that this uncontroverted name calling raises an inference of discrimination on membership of the Traveller community ground. This detail was not raised before as the complaint form submitted to the WRC merely gave an overview of the complainant’s experience on the 8 January 2020.The complainant’s solicitor states that no evidence has been submitted denying that this statement was made. The complainant’s solicitor differentiates between the instant case and Khalda Amjad v Primark Ltd. Pennys, ADJ 26133, relied upon by the respondent, which unlike the instant case, made no express reference to the protected ground of race or religion whereas in this complaint, the complainant was called “a gypsy”.

The complainant’s letter of 28 January notifies the respondent of intention to seek redress. The adjudicator has scope in all of the circumstances to apply section 21(3)(a)(ii) which dispenses with the requirement to notify the respondent where there are exceptional circumstances. The exceptional circumstances are that the complainant has literacy issues and has profound disabilities. The respondent is not prejudiced by the application of section 21(3)(a)(ii) of the Equal Status Acts.

 The correct name of the respondent is Poundland Ltd. T/A Dealz. This is reflected in the decision.

Complaint of discrimination on the grounds of disability.

The respondent’s barrister submits that the complainant’s own evidence suggests that the shop assistant helped the complainant with the scanning and payment of the items which contradicts the allegation that she told the complainant to get out of the shop.

Concerning the complainant’s solicitor’s response to the question of the application of section 21, put to him by the adjudicator, the respondent’s barrister states that the complainant could have made the notification within 2 months, failed on the second 4 months and failed to make out any exceptional circumstances which would enable him to rely on section 21 (3)(a)(ii) of the Acts as amended. The respondent would be prejudiced by its activation.  The second statement concerning the incident was received on 24 June 2020.

The respondent submits that the WRC does not have jurisdiction to hear the complaint. Without prejudice to this preliminary point, the primary facts submitted by the complaint do not indicate less favourable treatment on the basis of a disability. The complainant has failed to prove that the treatment meted out to her on 8 January, though seriously unsatisfactory, was owing to her disability. The shop assistant stated that she did not know that the complainant had a disability.

 What action did the complainant expect of the respondent?

The respondent relies on Khalda Amjad v Primark Ltd. Pennys, ADJ 26133, which found that the complainant, though at the receiving end of substandard service, was not discriminated against on the grounds of her religion or race.  She was treated rudely.

The complainant has failed to prove that the seriously unsatisfactory treatment of her was based on a protected ground. She has failed to raise an inference of discrimination, has failed to move the burden to the respondent to rebut an inference of discrimination and her complaint must fail.

Complaint of discrimination on the traveller ground.

The respondent states that this is the first reference to the alleged name calling. This detail was not contained in any previous evidence. It was not contained in the oral evidence supplied by the complainant’s witness. The WRC should factor this into their deliberations. The WRC should find against this complaint on that basis alone.

The matter for decision is whether the respondent discriminated against the complainant in disposing of goods, because she had a disability and was a member of the Travelling community.

Relevant law.

Section 5(1) of Act provides as follows:

 “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.” 

I am satisfied that the respondent is disposing goods to the public within the meaning of section 2 of the Equal Status Acts 2000-2018.

Complaint of discrimination on the grounds of disability contrary to section 3(2)(g) of the Equal Status Act, 2000-2018.

I am satisfied that the Complainant is a person with a disability in accordance with the definition of disability set out at Section 2 of the Equal Status Act [2000 – 2018].

There are three matters for consideration:

Did the complainant meet the requirements set out in section 21 of the Acts?

If so, has the complainant raised an inferenced of discrimination on the grounds of disability?

If so, can the respondent rebut the presumption of discrimination on the grounds of disability?

The first matter for consideration is the obligation on the complainant to notify the respondent within the required time limits set out in Section 21(2) of Acts. Section 21 of the Act of 2000 provides as follows:

“(2) Before seeking redress under this section, the complainant—

                             (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

                             (i) the nature of the allegation,

                             (ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the case to the Director,

                             and

                             (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

                             (3) If, on application by the complainant, the Director is satisfied—

                             (a) that exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (2), and

                             (b) that it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months provided for in that subsection,

                             the Director may direct that, in relation to that case, subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly”.

The complainant submits that the notification of 27 January complies with the requirements of section 21. It does not specify a referral to the Director of the WRC nor the forum in which she will seek redress.

I find that the complainant has not met the requirements to notify the respondent in accordance with the above provisions.

The complainant submits, in the alternative, that special circumstances exist so as to enable her to rely on Section 21 of the Act of 2000 as amended by the introduction of Section 21 (3)(ii) of the Equality Act 2004, which allows the director to waive the notification requirements entirely in exceptional circumstances, where it is fair and reasonable to do so.  The amendment provides as follows:

              Section  “(3) (a)      On application by a complainant the Director may—

                             (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

                             (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

                             and, where such a direction is given, this Part shall have effect accordingly.

                              (b) In deciding whether to give a direction under paragraph (a)(ii) the Director shall have regard to all the relevant circumstances, including—

                             (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

                             (ii) the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint.”,

The use of section 21 (3)(a)(ii) was considered in Andrew Ennis-V- Navan O'Mahony's Football and Hurling Club, DEC-S2010-031, where the complainant had failed to satisfy the notification requirements. The Equality Officer in considering the circumstances which would permit its use stated

“It is critical to note that, in considering these circumstances, account must be taken of whether and to what extent prejudice arises in relation to the respondent. However, I believe the exception is there to provide for a particular set of circumstances, that, inter alia, might flow from a technical failure to meet the notification requirements of the Acts in circumstances where, but for this technical breach, an unrepresented complainant would have clearly and unambiguously met the necessary notification requirements”

Just as in the latter decision, I do not see how the respondent in the instant case would suffer any prejudice were Section 21(3)(a)(ii) to be applied in the complainant’s favour.  The respondent was notified of the complaint, of the complainant’s disability and of her intention to pursue the matter. No material or significant difference in the evidence concerning this complaint of discrimination emerged in the period between the notification of the 27 January and the hearing of the case, nor at the hearing. I also note that the complainant was unrepresented at the time she wrote the notification on 27 January. I note her profound disabilities. In accordance with Section 21(3)(a)(ii) of the Acts, I consider that these set of circumstances enable me to dispense with the requirement on the complainant to issue a notification. Consequently, I find that I have jurisdiction to hear the complaint of discrimination on the grounds of disability.

Burden of proof.

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

The uncontested evidence is that due to her disability the complainant had difficulty using the scanning machines to complete her purchases on the 8 January 2020 and rather than being assisted, was spoken to in an abusive manner. The respondent accepts that the shop assistant’s behaviour fell well below the standard required.

Section 4 of the Equal Status Acts states

“For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

The complainant’s witness evidence is that after the reluctance of the shop assistant to assist his sister in operating the scanning machines, and after her abusive behaviour towards his sister, he told the shop assistant that the complainant could not read and that she had a disability to which the shop assistant replied that she did not know this. Thereafter, the respondent manager helped the complainant and gave the complainant a receipt.

To succeed in a complaint of discrimination on the grounds of disability, the failure to offer the necessary assistance must be because of the person’s disability as opposed to the ill- tempered response of the assistant to a request for assistance.

Knowledge of the disability.

The matter of the obligation to inform the respondent of a disability was addressed in A Complainant-v-A Supermarket DEC-S2010-013.  The Equality Officer stated

“The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent's staff would have known him frequently enough and/or well enough to have become aware of his disability in the context outlined in the previous paragraph. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability”.

This decision is in keeping with the requirement to notify the respondent of the disability, found in Garcia Rodriguez v Bus Eireann, DEC-S2008-077 and in Carroll v Middleton Cabs, DEC -S2010-010.

The oral evidence submitted at the hearing is that the respondent was unaware of the need to assist the complainant before the assistant’s resistance to helping the complainant arose, and that assistance was provided to the complainant to complete her transactions once the respondent knew of the complainant’s disability.

Based on the evidence and the authorities, I find that the complainant omitted to inform the respondent of her disability before she sought assistance.  I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of 3(2)(g) and Section 5(1) of the Equal Status Acts 2000-2018.

Complaint of discrimination on the traveller ground.

The complainant is a member of the Traveller community and therefore enjoys the protection found in section 3(2)(i) of the Acts.

 The complainant cites the treatment of the respondent’s shop assistant of her on the 8 January and set out in the above complaint of discrimination on the disability grounds, as evidence of discrimination on the traveller grounds contrary to section 3(2)(i) of the Acts. The complainant further cites the statement of the shop assistant to her on 8 January, “you are a gypsy” and her request to the complainant to leave the shop as evidence of discrimination on membership of the Traveller community ground.

In order to trigger the jurisdiction of the Act, the complainant must satisfy the notification provisions set out in section 21 of the Act.

The letter of 28 January which notifies the respondent of her disability and which the complainant argues is notification in keeping with the requirements of section 21 of the Acts makes no reference to having been called “a gypsy” and is devoid of any reference to her membership of the Traveller community. The complainant’s first reference to this statement arose at the hearing on the January 2022. The respondent was not therefore on notice of a (bald, ‘tick-box’) complaint of discrimination on membership of the Traveller community ground until receipt of the complaint form to the WRC on 2 July 2020.

Accordingly, the complainant has failed to meet the statutory obligations set out in section 21 which is a condition precedent to invoking the jurisdiction of the Equal Status Acts, 2000 to 2018.

I find, therefore, that I do not have jurisdiction to hear this complaint of discrimination based on the complainant’s membership of the Traveller community.

I find that the complainant has not established a prima facie case of discrimination on the disability ground contrary to the provisions of the Equal Status Acts 2000-2018.

 I find that that I do not have jurisdiction to hear the complaint of discrimination based on the complainant’s membership of the Traveller community.

I find that this complaint of discrimination on both grounds cannot succeed.

Discrimination on disability and membership of the traveller community grounds; knowledge of disability; section 21 notification.