Complainant

Respondent

Parties

Thomas  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-00038493-001

02/07/2020

The complainant contends that he was discriminated against on the basis of his disability and membership of the Traveller community contrary to the provisions of the Equal Status Acts 2000-2018, when shopping at the respondent’s store was made difficult for him on the 8 January 2020, the date of the last instance of discrimination.

He submitted his complaint to the WRC on the 2 July 2020.

Complaint of discrimination on the grounds of disability.

Complainant’s evidence.

The complainant’s disability is that he has an overactive thyroid gland which results in him speaking in a very loud voice which some people might mistakenly believe to be an aggressive voice.

Act of discrimination.

Because of his sister’s disabilities, the complainant always takes her shopping. He went with his sister on the 8 January 2020 to the respondent’s store. While collecting items from the shelves, he heard a shop assistant giving out to his sister and speaking to his sister in an aggressive manner. He told the shop assistant to desist from speaking to his sister in a reproachful way. The shop assistant told him that his sister should be well able to use the self- service checkout and to put in the money. The complainant told the assistant that his sister was unable to read, unlike himself.  The assistant did not give him a receipt. He asked to speak to the manager, who came and gave him the receipt. He returned to the shop assistant to tell her that his sister had been very upset at her manner. The complaint told the assistant that his sister was unwell. The assistant advised him that she had been unaware of this.

The assistant was very hostile towards the complainant accusing him of roaring at her. She told the complaint “to close his mouth and leave the shop.” He never experienced anything like this before in the respondent’s shop. The assistant did not offer an apology. He was very embarrassed as all this was played out in front of other customers.

Cross examination.

He did not tell the respondent that he had an overactive thyroid gland or that it affected the volume of his voice.

The complainant confirmed that neither he nor his sister scanned the items and that it might have been the assistant who did this.

The complainant’s solicitor in summing up stated that the complainant was treated less favourably because of his association with his sister, a person with a disability and covered, therefore, by a protected ground. He was subject to discrimination by association contrary to section 3 (1)(b) of the Equal Status Acts, 2000-2018.  He was accused of being very aggressive. Reasonable accommodation should have been offered to his sister and to the complainant by association. In contrast, both he and his sister were asked to leave the shop.

Concerning the obligation to comply with section 21 of the Equal Status Acts 2000-2018, the complainant notified the respondent of his experience on the 27 of January, of his sister’s disability and of the shop assistant’s aggressive attitude towards him when he went to assist his sister.

Complaint of discrimination on membership of the Traveller community ground.

 The complainant cites the accusations of the shop assistant that he was roaring and her request to him to leave the shop as evidence of discrimination on the basis of membership of the Traveller community.

The complainant’s solicitor states that this uncontroverted name calling raises an inference of discrimination on the basis of membership of the Traveller community. By association with his sister who was called “a gypsy”, he too was treated less favourably than a person not associated with a person subject to discrimination on the basis of membership of the Traveller community.

The complainant’s letter of 27 January notifies the respondent of his intention to seek redress.

Complaint of discrimination on the grounds of disability.

The Disability.

The respondent asks that it be noted that no medical evidence has been submitted supporting the connection between an overactive thyroid gland and a loud voice.

The complainant cannot impute knowledge or responsibility to the respondent for not knowing that he had an overactive thyroid gland and that this condition can lead to a loud voice.

The alleged act of discrimination.

The complainant gave no direct evidence of having been hampered in getting goods from the respondent. For the complainant to succeed in a complaint of discrimination on the disability grounds by association, the complaint that his sister had been discriminated against on the grounds of disability would have to be upheld. The respondent refutes the complaint of discrimination submitted by the complainant’s sister.

 The respondent submits that the complainant’s notification of 27 January to the respondent fails to meet the requirements of section 21 of the Act. It omits to inform the respondent of his intention to refer the matter to the Director and to invoke the protections available to him under the Equal Status Acts. The requirements set out in section 21 are a pre-condition to seeking redress under the Acts.  Therefore, the WRC does not have jurisdiction to hear this complaint. The respondent replied to the complainant’s notification, apologised and offered a voucher on the 31 January and there the matter rested until the 24 June 2020. The complainant has not set out any special circumstances which would enable him to rely on Section 21(3)(a)(ii) of the Acts which could allow the adjudicator to dispense with the requirement for a notification in accordance with section 21 of the Acts. 

Without prejudice to this preliminary point, the respondent states that the complainant has failed to make out that the admittedly, sub-standard behaviour of the shop assistant towards him amounted to less favourable treatment based on a disability or his membership of the Traveller community. He has failed to raise an inference of discrimination and his complaint cannot succeed.

Complaint of discrimination on membership of the Traveller community ground.

 The respondent ‘s barrister states that no case has been made out in support of this complaint. For the complainant to succeed in a complaint of discrimination on the Traveller community ground by association, the complaint that his sister had been discriminated against on the same ground would have to be upheld.

The complainant’s letter of 27 January to the respondent fails to comply with the notification requirements contained in section 21 of the Acts.

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

Preliminary issue

Notifying the respondent in accordance with section 21 of the Acts is a condition precedent to invoking the jurisdiction of the Acts in relation to both the complaint of discrimination on the disability grounds and the complaint of discrimination based on his membership of the Travelling community. Section 21(2) 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’s notification of the 27 January 2020 to the respondent makes no reference to his disability, makes no reference to his membership of the Travelling community and makes no reference to a referral to the Director in accordance with section 2(ii) above.

Clearly the complaint did not comply with the above requirements.

Neither can Section 21(3)(a)(ii) come to the complainant’s assistance as apart from the prejudice which could arise for the respondent, in the dark about the exact alleged discriminatory acts and the complainant’s specific intentions, no special circumstances were pleaded nor are obvious.

Despite the very poor treatment meted out to the complainant by the respondent,  I cannot find that the complainant served a valid statutory notification on the respondent in accordance with section 21(2). I find that this failure deprives me of jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint of discrimination in terms of section 3(2)(g)  or of section  3(2)(i), and contrary to section 5 (1) of the Equal Status Acts, 2000 to 2018.

Failure to notify in accordance with section 21 (2) of the Equal Status Acts.