Complainant

Respondent

Parties

Laura  Mc Donnell

Iceland Stores Ireland Limited 

Representatives

Christopher Mc Cann Free Legal Advice Centres

Michael Heskin Solicitor Miley & Miley LLP/E.J. Walsh B.L.

Act

Complaint Reference No.

Date of Receipt

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

CA-00043432-001

07/04/2021

The Complainant who is now aged 18 accompanied Megan McDonnell and her younger cousins to shop at Iceland. On or about the 20th of November 2020 when she went into Iceland soon after they   were approached by the security officer and assistant manager and asked to leave the shop along. The Complainant alleges that the security officer and manager asked her to leave because she is a member of the traveller community, and she was treated less favourably to others in the shop who are not members of the travelling community.

The Respondent state that they are open for business for all customers and do not discriminate against any group and in fact the Complainant and her friends have in fact shopped at the store previously.

The Respondent stated that the Company staff book details relevant policies to ensure that its staff know their legal obligations and ensure that customers are not discriminated against on any ground prescribed by statute.

The Complainant stated that she was discriminated against because she is a traveller. As she entered the shop with her cousins and family, they were all chatting away and she believes that based on her accent and those of her relatives, she was readily identified as belonging to the traveller community. She also stated that along with having a very distinctive accent she and her companions dressed in a way that is common among traveller communities. They tended to wear their hair long and have a similar fashion style and preference.

The Complainant stated that a CCTV recording would show that other young people like her who entered the store at the same time were not asked to leave.

The Complainant stated that the effects of this treatment was humiliating. She had done nothing wrong and the only reason she was asked to leave the shop was because she was a member of the Traveller community.

The Respondent denies that they discriminated against the Complainant.

Travellers are welcome to shop at Iceland and the Complainant and family have shopped many times there before. There is no prejudice to the Complainant arising from being a member of the Traveller community.

The Complainant carries the initial evidential burden to show that there is a prima facie case that raises a presumption of discrimination. That cannot arise in this case. The security guard and manager are non-Irish nationals and would not be able to distinguish a Traveller’s accent to that of another customer in the shop.

The Complainant also relies on a distinguishing fashion or dress sense that she stated would indicate that she was a traveller. However, on the CCTV evidence that could not be so as the comparator referenced in the video, other customers of a similar age who were in the shop at the same time also dressed in a similar way and had long hair.

This is an action that has solely targeted Iceland; however, the respondent should have also joined the respondent Security company to this complaint.

Iceland relies on correspondence it sent to the Complainant dated 14th of January 2022 and enclosing the Company’s dignity at work policy. This policy references the protected characteristics as found in the Equal Status Acts 2000-2018 and that the Company was fully committed to ensuring that shopping in Iceland was open to everyone. The Company rejects any inference whatsoever that it would turn a blind eye to any form of discrimination; the Respondent is fully committed that the Iceland both for its employees and customers is free of any form of discrimination. Managers and staff are trained in these policies.

 During cross examination the Complainant accepted that up to now she had shopped without incident in Iceland, and she has never experienced any discrimination previously.

It was put to the Complainant that she dresses like other young people and in fact the young people in the shop at the time of the alleged event of discrimination were dressed like her. They also wore their hair long.

It was also put to the Complainant that both the security officer and manager were non-nationals and could not differentiate her accent from anybody else shopping at the store

Counsel for the Respondent stated it simply was not credible to maintain that she was asked to leave the store because she was a traveller.

The Complainant stated that it was her belief that a young traveller could be identified by their accent and common dress style and that they were escorted from the store for this reason. The store gave no reason for their action and even when asked for a reason some 30 minutes later no answer was provided.

In evidence the area Manager for Iceland stated that it simply was untrue to state that travellers were not welcome in Iceland; the facts show that the Complainant and family had shopped here previously and were welcome to shop at Iceland. The Company was very conscious of their legal responsibilities and were committed to ensuring their shops both for employees and customers were free from discrimination. Managers and staff are trained and briefed about such policies and sign that they have been briefed.

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference of discrimination and 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”.

The first question that should be asked has the principle of equal treatment been breached in this case.

It is clear from the CCTV footage that the Complainant along with her companions were escorted off the premises and other young people in the store were not. Based on this evidence, it would appear there has been different treatment.

However, has the Complainant established primary facts that give rise to an inference of discrimination? The test as detailed by the Labour Court in Cork City Council v McCarthy EDA 21/2008 is as follows:

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.”

The Act states at:

3.—For the purposes of this Act discrimination shall be taken to occur

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

And at

Burden of proof.

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 this case it is alleged that the prohibited conduct arose because i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”), and Traveller community is defined as:

“‘Traveller community’ means the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland;”

In this case it is also stated that the security guard’s actions gave rise and caused the Complainant to be escorted out of the shop and therefore Iceland is not liable rather the employer of that security guard is liable.

At section 42 vicarious liability is referred to as:

Vicarious liability.

42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

The evidence of the Complainant is credible concerning how a traveller can be identified. It is a fact that in this case the Complainant does have an accent that is a characteristic of the traveller community

The Respondent has not called or requested that the previous store manager and security guard be called to give evidence. The Respondent makes out a case that it could not be the case that the security guard and manager identified the Complainant having regard to her accent and how she dressed. That proposition is difficult to maintain as no direct evidence has been presented to prove that assertion and no opportunity has been provided for that evidence to be challenged and cross examined. In these circumstances there is very little weight that can be given to that assertion.

The Complainant has in contrast given very credible evidence that she was identified easily as being a member of the traveller community. The CCTV footage also corroborates that without any explanation and in contrast to other young people in the store at the same time the Complainant was treated differently.

The Company relies on the defence that the facts show that the Complainant and indeed her family have previously shopped at the store and on their policies that show that discrimination under any of the grounds is not acceptable.

At page 28 the Company policy states that:

“If you are a Line Manager, you will be trained on how to deal with discrimination, harassment and bullying. Further assistance in these areas can be sought from your HR Manager.”

The Company has provided no evidence that such training has occurred.

Section 42 provides a defence where that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

The area Manager has given evidence that is so; however, in this case no direct evidence was given by the Manager of the store, the Security Guard or indeed a trainer or Human Resources employee to show that the Manager of the store and the Security Guard received such training.

The Act also attaches liability to the employer where:

.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person

Whatever the deficits in the Respondent’s case; the Act requires that the Complainant must:

 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

That prima facie test as set out in McCarthy states that it is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. It is important to note that 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.

The Complainant has established facts that she was chatting out loud with her cousins and others as she went into to the shop, that she has a distinguishing accent and that as a group she could be identified as a traveller and that she was asked to leave the shop in contrast to other young people in the store at the time. I determine that the Complainant has established a prima facie case that she was discriminated against because she was a member of the traveller community and that the Respondent engaged in prohibited conduct.

As the Complainant has established a prima facie case, it falls to the Respondent to rebut that assumption or inference of discrimination on the balance of probabilities.

The Respondent has called no direct evidence to support its proposition that the Security Guard and the Manager could not have identified the Complainant based on her accent. Counsel relies on the fact that they were non-nationals. Little weight can be given to that assertion as it is not possible to challenge or cross examine that evidence.

The factual matrix of the complaint must be considered. The Complainant has provided credible evidence that she could be identified as being a member of the traveller community and that difference in treatment occurred. That difference in treatment has been corroborated by CCTV footage that shows she along with others who are all members of the traveller’s community were escorted out of the shop while other young people were not. The Complainant has established facts that give rise to a presumption or inference of discrimination.

The Respondent also relies on a defence that in the past the Complainant has shopped at the store and that it has trained its staff to ensure discrimination does not occur. Again, no direct evidence has been provided that in this case the store Manager and Security Guard received such training.

The Respondent stated that it was the Security Guard who initiated the chain of actions that led to the Complainant being escorted from the store; however, the Act states that anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person. The Security Guard on the facts was an agent of the Respondent and therefore the Respondent is vicariously liable for the act of the Security Guard.

The Security Guard and the Manager escorted the Complainant out of the store. In this scenario the actions of both the Manager and the Security Guard as required by the Act shall in any proceedings brought under this Act as done also by that other person.

The Complainant has established facts where it may be presumed that the Respondent engaged in prohibited conduct and treated her less favourably than others who are not members of the traveller community. The burden of proof where a prima facie case is established is shifted to the Respondent to prove on the balance of probabilities that it did not engage in prohibited conduct. I find that the Respondent has not proved to the contrary that it did not engage in prohibited conduct and discriminate against the Complaint on the ground that she was a member of the traveller community.

Section 27 provides that:

27.—(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

I find that the Respondent did engage in prohibited conduct and find in favour of the Complainant. I have had regard to all the circumstances of this case, the emotional upset and public embarrassment experienced by the Complainant while also considering what is a proportionate amount. I award the Complainant €3000 in compensation for the effects of the prohibited conduct and determine that this amount is appropriate based on the circumstances of this case, as it is proportionate and dissuasive.

I find that the Respondent did engage in prohibited conduct and find in favour of the Complainant. I have had regard to all the circumstances of this case, the emotional upset and public embarrassment experienced by the Complainant while also considering what is a proportionate amount and that is also dissuasive.  I award the Complainant €3000 in compensation for the effects of the prohibited conduct and determine that this amount is proportionate and a dissuasive award.

Traveller-Discrimination-Vicarious Liablilty