Complainant

Respondent

Parties

Rose O'Brien

Poundland Ltd  Dealz Tralee

Complainant

Respondent

Anonymised Parties

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Representatives

Cillian Bracken BL instructed by Thomas Coughlan & Co. Solicitors and Traveller Equality & Justice Project, School of Law, UCC.

Michael Munnelly BL instructed by Miley & Miley LLP Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051639-001

11/07/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

It was the Complainant’s claim that she was discriminated against in the provision of goods and services as a member of the travelling community by the Respondent in April 2022.

The Complainant swore an affirmation. The Manager of the Respondent store swore an oath at the outset of the hearing. Both parties availed of the opportunity to present their evidence in full and cross examine.

Detailed submissions and documentation relied upon in evidence were exchanged between the parties with the Respondent being given a period of 30 minutes to review the Complainant’s further submissions.

The Complainant sent the ES1 Form, dated 5 May 2022, to the Respondent. There was no ES2 Form received. The Complainant submitted a Complaint Form to the Workplace Relations Commission which was received on 11 July 2022.

Upon inquiry to the Complainant’s representatives as to whether a claim of harassment was being pursued as it was included in the submissions but not the Complaint Form. It was confirmed that was not the case and Complainant withdrew it.

The Complainant gave evidence that she was a member of the travelling community, which was evident from the way she looked, her hair and the way she spoke.

On 29 April 2022 at approximately 8.30am the Complainant was shopping in the Respondent store. She initially picked up several items and brought them to the self service check out. There was an issue with the mop as it would not scan so she asked for help from the Manager. The Complainant described the Manager as being rude and “inpatient” but did not say anything to her. It was the Complainant’s evidence that she felt he didn’t want to help her because she was a traveller. The Complainant continued to say that she decided not to purchase all the goods she had originally brought to the till and moved onto another self service till. She paid for her goods and left the shop.

The Complainant continued in her direct evidence to describe her next steps where she purchased milk in an adjoining shop and walked to her car in the car park. It was the Complainant’s evidence that the Manager came out of the store and “was looking at me like I did something wrong” and accused her of stealing from the Respondent. The Complainant said they returned to the shop where she denied this allegation to which the Manager, replied, “you did, I’m calling the Gardaí, your barred.” The Complainant gave evidence that this Manager was the same person that was rude to her at the self service check out. She described feeling “small” and did not argue back as she was so “shocked”.

When she returned home the Gardaí were contacted and were told what happened from the Complainant’s side. She agreed to meet the Gardaí back at the store. There were two Gardaí presented and the male Garda went into the store to look at the CCTV. When he returned outside to the Complainant, he confirmed he could see that she paid for her items, and this was a “civil matter”. The Complainant gave evidence that two of her neighbours passed her.

The Complainant was cross- examined and the Respondent’s version of the events on that morning were put to her. The Complainant replied that the Manager “nodded his head” at her and got a “vibe” from him.

The narrative on the Complaint Form was put to her. There was nothing in the narrative that said she returned to the store. There was no reference to a conversation inside the store or that you followed him back into the store. When asked if the Complaint Form was an accurate account of what happened, the Complainant said confirmed it was.

It was put to her that the Manager of the store did not call the Gardaí and he simply did not have a reason to do so. The Complainant confirmed she was the one who called the Gardaí.

It was put to the Complainant that there was no reference in the Garda notes that the Manager accused her of stealing or any complaint by the Respondent about the Complainant. In reply the Complainant accepted this.

Lastly, the Respondent’s SCONE policy and the evidence it intended to present was put to the Complainant.

Upon inquiry the Complainant was asked if she obtained the goods in which she intended to purchase from the Respondent and she confirmed she did.

The Complainant’s representative relied on the case of Maughan v Poundland Limited Dealz, ADJ-00026693 and McDonnell v Iceland, ADJ-00032639.

The Respondent denies any discrimination.

It was the evidence of the Manager of the Store that he did recall interacting with the Complainant at the self service check out which was necessary as a result of a known issue with the scanning/weight of mops. Once he inputted the relevant code he returned to his duties on the floor.

The Manager gave evidence that he managed this store for 8.5 years. He said he was a creature of habit and established a routine of going to the Tesco near by for a coffee and a Danish pastry for his morning break. On this day, at approximately 8.40am as he walked out from the shop across the square, he put his hands on his pockets, realised he forgot this wallet and returned to the store. He accepted he did see the Complainant getting into her dark coloured car but denied making any gesture or comment to her. The Manager gave evidence that he did not leave the store again for his break as he was called on by staff. He was asked if the Complainant approached him outside of the store, this was denied. He was also asked if the Complainant followed him into the store as per her evidence and the Manager denied this.

Later that day the Manager was met with a member of An Garda Síochána entering the Store at approximately 10.30am - 11am He was asked by the Garda whether there had been a theft in the store earlier that day to which he replied he did not know and invited him to view the CCTV cameras. The Garda and the Manager went into the office, viewed the footage and both concluded there was no theft. The Manager was asked if he made any allegation of theft and replied that he did not as he was not aware of any. The Manager was asked who raised the issue of the Complainant leaving the store without paying to which he stated, “the Gardaí”.

The Manager gave evidence of the Respondent’s SCONE policy which does not permit staff to engage with suspected shoplifters and instead to refer the manner to An Garda Síochána. With reference to the policy the Manager explained that a breach of the policy may be considered as gross misconduct.

Finally, the Manager described members of the travelling community being regular customers to the store.

The Manager was crossed examined and asked about the series of emails that he sent to the Respondent’s HQ following the incident which made no reference to seeing the Complainant in the car park.

The Garda Report which was obtained with the help of UCC was put to the Manager. It was put to the Manager that the report differs from what he said in his evidence and in his emails to HQ and there were inaccuracies. The Manager replied by saying he told Gardaí that he was unsure whether an incident of shop lifting happened that morning.

The Complainant’s evidence was put to the Manager, and he denied it and in particular denied asking her to step back inside the store. 

Firstly, it was not in dispute that the Complainant was a member of the travelling community. Therefore, this is accepted.

In this case the “prohibited conduct” identified by the Complainant is the alleged accusation of theft by the Respondent to the Complainant and the barring her from the store because she was a member of the travelling community.

The next step is to consider the definition of discrimination as per section 3 of the Equal Status Act 2000 as:

“(1) 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,

(b) where a person who is associated with another person -

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section 3(2) of the Acts continues:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”.

Section 5 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:

5.—(1) 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.

It must be considered whether the Complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. 

The Court continued; “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 was no infringement of the principle of equal treatment”.

In deciding whether the Complainant has established a prima facia case the focus is on the Complainant’s own evidence. In her direct evidence she describes returning to the store and being accused of stealing and told she was barred. It was also said that Respondent was the one who threatened to call the Gardaí. This version differed to that which was detailed in the Complainant Form. This was put to her in cross examination, and she confirmed her complaint form was accurate and she did not return to the store with the Manager.

The Complaint Form and the letter from the Respondent’s representative, dated 1 July 2022, gave a detailed account of the incident which differed again from the evidence presented by the Complainant at the hearing. In particular, there was an allegation that the Complainant invited the Manager to confirm her purchase on the till, but the Manager was very condescending and aggressive and Respondent said; “this wasn’t possible as the machine was down and the history would be gone.”  This allegation was not adduced in the Complainant’s direct evidence nor was it put to the Manager in cross examination.

Upon inquiry, the Garda Report contained in an email dated 23 January 2023 and submitted by the Complainant was opened on the screen. The following extract was read out for the Complainant a number of times; “On arrival the members spoke to Ms Rose O’Brien who informed them that she had been stopped by security on exiting the store and it was alleged that she had items from the store on her possession which she had not paid for”. The Complainant was asked if this is what happened on 29 April 2022, and she confirmed it was. Much was made about the efforts that the Complainant’s representatives went to, to obtain this report and relied upon it as evidence that the Complainant’s account “directly corroborated with An Garda Siochána.”

The Complainant’s own evidence was inconsistent throughout the hearing. Whereas the Manager was unswerving in his version of events which corroborated with his emails to the HQ following the complaint.  On that basis of the evidence, it simply cannot be found, on the balance of probabilities, that the Complainant raised a sufficient presumption of unlawful discrimination to establish a prima facia case of discrimination. Consequently, I find the Respondent did not engage in prohibited conduct.

I find the Respondent did not engage in prohibited conduct. 

Equal Status- Provision of Goods – Prohibited conduct.