Complainant

Respondent

Anonymised Parties

A Minor

 A Large Supermarket

Representatives

Orla Meere, BL instructed by  Frank Buttimer & Co. Solicitors

 Frank Sugrue, In House Counsel

Act

Complaint Reference No.

Date of Receipt

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

CA-00051560-001

05/07/2022

On 5 July 2022, the Complainants Solicitor, lodged a complaint of discrimination on his behalf against the respondent supermarket business.

The Complainant is a minor for the purposes of the Equal Status Act 2000 and evidence was given as his next friend by his mother, under oath.

A further issue has arisen in that the Respondent has denied receipt of the ES1 form, a foundation document in the case.

The Respondent operates a large supermarket business and has denied the claim at preliminary and at the substantive juncture.

On 13 June 2023, I wrote to the Complainant and sought submissions in preparation for hearing. I indicated that I would address the issue of notification of the claim, raised by the respondent as a Preliminary issue followed by the substantive case.

Both parties were represented, and both submitted helpful outline submissions.

As the complainant in this case is a Minor, I have exercised my discretion and anonymized the decision as appropriate.

Supply and publication of decision.

30.— (1) A copy of every decision of the Director of the Workplace Relations Commission under this Part shall be given to the complainant and the respondent and every such decision shall be published on the internet in such form and manner as the Director General of the Workplace Relations Commission considers appropriate and a copy thereof made available for inspection at the office of the Director of the Workplace Relations Commission.

The Complainant is a member of the Travelling Community. On 14 March 2022, the complainant was browsing in the company of two of his relatives, a brother and cousin at the respondent supermarket. A Female member of staff, unknown to him, approached him and said:

“We don’t want your kind in this shop “

He was humiliated and left the shop.

The Complainants Solicitor confirmed that an ES1 form was sent to the Customer Service at the Business on 3 May 2022.

It did not generate a response.

The Complainant representatives confirmed that the Customer Services had not been followed up prior to the WRC referral in July 2022.

This form was signed by the complainant but was undated.

The Complainant submitted an outline submission in support of his claim.

It was the Complainant case that he was discriminated against as a member of the Travelling Community contrary to the provisions of the Equal Status Acts 2000-2018, when impeded in shopping at the respondent store on 14 March 2022.

At approximately 20.55 hrs on 14 March 2022, the complainant visited the shop in the company of relatives.

Shortly after his arrival at the store, a female member of staff, Ms A, Deputy Store Manager, requested that he leave the shop and was unwilling to explain why he was being asked to leave.

The Complainant interpreted this as an exclusion of him as a member of the Travelling Community and he left the store upset and embarrassed. He had a brief exchange with the Security Guard on the way out.

The Complainant submitted that it was apparent by the complainant’s dress, accents, and general manner that he was a member of the Travelling Community.

 Records of CC TV footage was sought from the Shop, but none were forthcoming. The Complainants Solicitor sought access to an incident report.

The Complainant side placed two telephone memos in their book of documents.

1 record of a phone consultation with a rider that a complainant statement was anticipated.

 6 April 2022

2 record of phone consultation, recordings received were an accurate depiction of what occurred on the day .CC Tv footage requested.   

                10 February 2023

Counsel for the Complainant submitted that the complainant had satisfied the burden of proof required under Section 38 A of the Act by application of the test in Delaney v Jameson Hotel DEC S 2002-102. She contended that the burden now moved to the respondent.

1 The Complainant is covered by a discriminatory ground i.e., a member of the Travelling Community

2 He outlined the circumstances of being refused service.

3 that treatment was less favourable than   treatment someone not covered by that discriminatory ground would have received in similar circumstances.

It was the Complainant case that he and his relatives were the only persons asked to leave the shop on the 14 March 2022.

The Complainant denied the respondent contention that he was “messing around “in the shop as the antecedent event.

Counsel submitted that the complainant was humiliated by the very public nature of his direction to leave the shop and has never returned.

Preliminary Issue: Section 21 of the Equal Status Act 2000

Ms Meere BL for the Complainant acknowledged that the ES1 was undated. She outlined that the Solicitor hosted the Complainant for consultation on 25 April 2022. The Solicitor was unaware of the complainant’s minor status.

She requested that 3 May 2022 be accepted as the date of notification or in the alternative that the Adjudicator carried a discretion to dispense with the time limits in accordance with Section 21(3) (a) (2)

The Respondent was not compromised as witnesses and statements had been filed.

Ms Meere relied on the cases of Andrew Ennis at the Equality Tribunal and a Minor v Iceland Stores ltd ADJ 32642.

She confirmed that a 17 second recording had been disposed of and stood deleted.

Evidence of Ms Aoife Buttimer by affirmation

Ms Buttimer is the Complainants Solicitor. She attended the hearing by video link at my invitation.

Ms Buttimer recalled a consultation with the complainant and others at 3 pm on 25 April 2022. She had no knowledge that two out of three were minors.

She confirmed that the ES1 had been sent by ordinary post with a cover note. She acknowledged an oversight in it not being registered. The ES1 was sent directly to the store address in Churchfield. It was not normal practice to retain the letterhead on the cover note. The correspondence on May 3, 2022, was sent through on dictation.

During cross examination, she recalled that the consultation with the trio lasted 20 minutes.

All three complied with the rules surrounding anti money laundering.

The main reference was regarding the case management service.

She had no knowledge as to why the ES1 was undated as it was not common to leave the form undated. She denied being under pressure for time as there were 11.5 days remaining within the notification period 14 March -3 May 2022, which was sufficient time.

She said that post is collected at the office at 4.30 pm daily. She had no recall if the ES1 had been placed in an envelope.

She confirmed that there was no follow up or affidavit of service.

Ms Buttimer acknowledged the writing on the ES1 form was hers. The completed form was not copied to the complainant. She did not place the letter in the envelope for carriage. It was not required to follow up for a response as the WRC was the next step in the process.

An extract of 3 May 2022 correspondence from Ms Buttimer to the Manager at the Supermarket

“… please see enclosed ES1 form, together with ES2 form. The particulars of the incident are enclosed within ES1 form.

You might respond within 1 month of today’s date by way of the enclosed ES 2 form “

In closing for the complainant, Ms Meere submitted that the Adjudicator could accept service of ES1 on May 3, 2022, or dispense with notification requirements. The circumstances of the case warranted a progression to the substantive case.

The Respondent had investigated the matter as reflected in their November 2022 correspondence and were not prejudiced. Witnesses for the Respondent attended the hearing.

Ms Meere was troubled by the respondent’s reliance on “machinery “at hearing as there had been no mention of that before the hearing day, just “non-food “

The Adjudicator can infer discrimination from the utterance of “your kind “which caused the complainant such embarrassment and upset.

The complainant was seeking the remedy of apology as did not want to see the situation replicated for others.

In relying on case law, Ms Meere drew from the facts of ADJ 27710, Margaret Green v Centra Blackrock, 2020, where an attempt to purchase fire lighters was met with a refusal of service, associated with alleged history of begging and where quantum of the award was reflected on the intergenerational impact of treatment meted to the complainant.

The Complainant side undertook to provide a submission on the Roma case CT within 7 days.

On 28 June 2023, the Complainant side furnished a requested post hearing comment on the Circuit court case of CT v Dunnes Stores Unlimited Company [2023] IECC 4. OConnor J

This was forwarded to the Respondent but did not generate a response.

“There should also an awareness of the problem that identity is frequently a genuine issue. We all have been in situations where we have embarrassed ourselves in thinking we recognise a particular person to only find it is a mistaken identity. In these circumstances there is also an added possibility of potentially stereotyping someone from an ethnic minority. Sometimes discrimination is not recognised even though in retrospect it might seem obvious. To overcome this, it is useful to combine a degree of empathy with objectivity. In other words, there should be some awareness of the challenges and obstacles that a minority ethnic person can endure in shopping. There may in fact be more than one way to communicate a policy concern. In this regard it is important to recognise that a person from an ethnic minority may have cultural concerns in regard to some forms of communication. This can be addressed by adequate training, and not just employee shadowing another employee. This policy can be reinforced by an employee user manual”.

This case resulted in a finding of discrimination when the complainants attempt to purchase an item were impeded when they were prevented from making the purchase of food.

Evidence of Next friend by oath

Evidence was given by the Complainants Mother. The Complainant is a brother to the Complainant in ADJ 40158 and was a Minor at the time of the occurrence in the case.

She told the hearing that the complainant had been visiting her parents before going to the Supermarket store to browse amongst coats and other nice things. He attended the shop with his cousin and older brother.

A lady staff member approached them and told the trio to leave as “your type “was not wanted. The Complainant wanted an apology as there were no precipitating factors. He was embarrassed and had walked away in shame without purchasing any groceries.

During cross examination, the Complainants Mother confirmed that she had told him that what happened that evening in the store on 14 March 2022 was not fair. she confirmed that she had asked the trio of complainants “to see what they could so “

The Complainants mother confirmed her awareness of the facts which occurred when he had made an appointment to see the Solicitors. She said that she had not intervened due to the complainant being with his older brother and she herself had a busy domestic family commitment.

She acknowledged that that complainant had not offered her feedback after the consultation.

She confirmed that the Complainant had a perpetually loud voice. She was unaware of how he was dressed on the day.

She denied that there was any messing around as the sole objective was to look at coats during the 5-minute shop visit.

The Complainants mother submitted that he had not mentioned a video of the occurrence.

When Mr Sugrue put to Ms Dooley if anti-social behaviour was at the root of what occurred at the store, would the complainant view intervention by the store representatives as appropriate?

Ms Dooley responded “if that is what happened? “

Ms Dooley confirmed that it was her practice to accompany her son as a minor to medical and education appointments, but she had not attended the Solicitors as he was with his older brother.

The Respondent operates a large group of supermarkets and has denied the claim of discrimination on grounds of Traveller status on 14 March 2022.

The Respondent requested that the claim be dismissed on the grounds that the complainant had not complied with the notification requirements of Section (2) (a) of the Act.

Preliminary Issue on notification of claim to respondent. Section 21, Equal Status Act

The Respondent representative, Mr Sugrue outlined that the Respondent had not received a notification of claim in any form or by ES1 until a complaint was furnished by the complainant Solicitor to the WRC in July 2022 and copied to the respondent on 12 September 2022. The incident relied on by the complainant was deemed to have occurred on March 14, 2022.

The following is an extract of the Respondent response to the WRC, September 2022.

“We note in the complaint form CA-00051563 as completed by the complainant on 5/07/2022, it is alleged that we were notified by ES1 form on 03/05/2022. Please be advised we have no record of receiving such ES1 form, nor were we aware of this complaint prior to the receipt of your letter on 15 /09/2022.”

A confirmation of compliance with the statutory notification period and a copy of the ES1 followed on 13 December 2022.

Mr Sugrue pointed to an inconsistency on the address used by the complainant from the alleged first notification of the claim to the complaint before the WRC.

Mr Sugrue contended that had the respondent been placed on notice of the complaint, the company would have dealt with it.

He said that what occurred was at variance with the obligations placed by Section 21 on the Complainant to notify the respondent of an occurrence prior to referral of the claim to the WRC on 5 July 2022.

Mr Sugrue raised a number of concerns regarding the ES1 form relied on by the complainant.

He submitted that it was undated, did not contain an outline of events, not affixed by a cover note or affidavit of service. It had not been sent by certified post from which carriage would be receipted.

He outlined that the CC TV footage as requested by the complainant was out of reach by the respondent as there was a maximum scope of retention of 30 days.

The Respondent representative submitted that there were no grounds on which an extension of time could be granted as the compliant acknowledged that he had access to a legal representative from the outset.

The Respondent was not open to informal discussions as the matter was deemed to be “too serious “

He distinguished Ennis on the facts.

Mr Sugrue outlined the post circulation system at the business, he contended that had the ES1 been received at the business, the Manager carried a responsibility to address legal complaints.

Evidence of Ms A, Deputy Store Manager, affirmation

Ms A had worked for the respondent for 7 years, 3 of which were in the shop which featured in this case. She had never attended at WRC previously and have never met the complainant or his   relatives prior to the circumstances of the case. She was not familiar with ES1 form and had not seen it before.

In relation to post management, she submitted that a notification of any claim, if received at the store would go to the manager. She added that it depended on who it was addressed to.

There was no log of events.

She recalled that the shop was busy on 14 March 2022. She was working at cheese and milk and wore a headset.

Ms A recalled that there had been a prevalence of anti-social behaviour over 2-3 weeks at that time.

She observed the trio engaged in disruptive behaviour on the middle aisle. She said that she asked them to stop but they didn’t. She recalled that she said:

“If you are going to be like that, get out of the store “

She said that one of the trios gave her cheek but did not remember the content of that cheek. She said that she would have addressed the Pope in the same manner. It was irrelevant that the complainant was a Traveller.

Ms A confirmed that the store did not have an exclusion policy. She did not complete a risk assessment.

She said that she drew on her instinct rather than   specific training. She did not know the complainant. She confirmed that she had tried to de-escalate the scene when the complainant was party to her being videoed recorded on a phone.

She contended that the exclusion was “for one night only “

During cross examination, Ms A said that she stepped in at it appeared to her that the complainant was   abusing store property. He and his relatives were messing about and lifting items onto the floor. She replied that the trio wouldn’t stop and there was “cheek “

She confirmed that it was the complainant who was most involved in disturbing stock.

She said that she had no recall of being asked to give a reason for her direction to leave the shop.

She said that she had not completed specific equality training. She had not recorded the incident and was unclear on the content of the cheek relied on.

She confirmed that she had the final word as store manager. She had not sought to debrief or flag the incident instore. 

Evidence of Mr B Security Guard by affirmation

Mr B had worked at the respondent base for 18 months. He was employed separately He did not attend the incident but did watch 10-15 minutes of CC TV footage (no volume)

He recalled that he was approximately 10 metres away from Ms A, when he heard her say “lads please just leave the store “in a normal tone.

He recalled that three lads, whom he did not know had told him they were asked to leave the shop. The words “your kind “were not spoken. He did not know the complainant was a Traveller. He did not hear cheek.

There was no policy on exclusions from the store, but he had the power to summon Gardai id intervention was deemed necessary.

During cross examination, Mr B confirmed that he had heard Ms A instruct the complainant and two others to leave after which she went to the warehouse. It happened quickly. He watched the CC TV as he wanted to know what occurred.

He was unable to observe the complainant’s demeanour as he left the store.

The Shop lifting Policy was in place but did not cover exclusions.

Substantive case:

The claim is denied. Mr Sugrue for the Respondent submitted that the events as described by the complainant were predicated on an event of disruptive behaviour by the complainant and his relatives and which culminated in the complainant being requested to leave the shop.

He argued that this was not a discriminatory act but aimed at managing disruptive behaviour. The Deputy Store Manager was put off by being filmed.

The Respondent did not accept discrimination as provided in section 3 of the Act. The complainant had not been treated differently to someone who was not a member of the Travelling community.

The store provides dignity at work training which educates on the protected status of the Traveller community. The store also provides a Dignity and Inclusion Policy.

The Complainants Traveller status is not disputed.

The Respondent submitted that the Complainant could not succeed in his claim as he had failed to provide evidence that he was treated less favourably than someone who is not a member of the Traveller community.

Thomas Keenan v Topaz Energy ltd ADJ 11225, unable to attribute the action of the Respondent to the Complainants Traveller status, no prime facie case.

Battles v Black Cap and Company ltd ADJ 23864, the complainant was unable to present evidence of a discriminatory statement.

Rosie Mc Donagh v Next Department Store DEC-S2011-022

Mr Sugrue submitted that the facts of this case were on point with the instant case. Anti-social behaviour served as a precursor for being asked to leave a store. The Equality Officer found anti-social behaviour.

Karen Duffy v Catherine Kavanagh ADJ 38002. The Adjudicator found respondent awareness of the circumstances of the case and no risk of prejudice to the Respondents ability to deal with the complaint.

The respondent drew a distinction of the vacuum of notification of circumstances believed to be discriminatory and a spin off occurred when the cc tv footage was not obtainable post 30 days.

Cash v CP Roache and company ltd ADJ 37571, Alan Lee v City Direct Bus ltd ADJ 43904(tracking of post)

In summary Mr Sugrue repeated that the Respondent had not been served with an ES1 form and Section 21(2) and (3) was not complied with by the complainant. Oral submissions did not meet the test for exceptional circumstances.

He clarified that the reference to non-food was simply a classification of area,

Mr Sugrue reflected on the evidence of Ms Buttimer who described a consultation on 29 April 2022, but did not result in correspondence until May 3, 2022. Ms Buttimer said that she dictated the letter, signed the ES1 but did not post it. He expressed a certain incredulity that a bulky document purporting to be 60 pages in volume had magically disappeared. He expressed some reservation on Ms Buttimer’s evidence.

Mr B was confident that he saw a motion of skateboard on the aisle, which corroborated Ms A’s evidence. She was the final arbitrator on in store anti-social behaviour and she exercised that authority.

The IHN App hosted records of incidents which occurred in store. Anti-Social behaviour was commonplace and not termed an incident.

Mr Sugrue submitted that no evidence of less favourable treatment linked to race occurred and no prima facie case of discrimination arose.

The burden of proof did not shift to the respondent.

He maintained that nobody had heard a racial slur of “your type”.

The depth of notification prevalent in Ennis was distinguished in the instant case,where the omission was on signalling an intention to refer the claim to WRC which was forgiven and dispensed with by the Adjudicator.

The circumstances as relayed by Ms A formed the nub of the case. The absence of the CC TV footage resulted in the respondent losing out on their defence in the case and in providing a real time demonstration as to what behaviour occurred in the middle aisle.

I have been requested to make a decision on whether the complainant in this case, a Minor accompanied by his next friend, was subject of Discrimination on grounds of his Membership of the Travelling Community on 14 March 2022, during a visit to the Respondent store. He is one of three complainants in conjoined cases.

In arriving at my decision, I have considered the oral and written submissions of both parties in addition to oral evidence adduced at hearing.

I have also had regard for the post hearing submission received on CT.

I am grateful to Ms Aoife Buttimer, Solicitor for the Complainants, who made herself available by video link when it became necessary for her to do so, i.e., to assist in the unravelling of the preliminary issue on notification.

To begin, I would like to set out the Head of the Legislation from where my jurisdiction and power to decide emerges in this case.

This is the stated objective the Legislature set out in Equal Status Act 2000

an Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities, to provide for the administration by the equality authority of various matters pertaining to this act, to amend the Employment Equality Act, 1998, in relation thereto and in certain other respects and to provide for related matters. [26th April 2000]

The Law has at its core to prohibit discrimination on any of the stated grounds in the provision of Goods and Services.

I would be grateful if both parties would reflect on this laudable goal.

My jurisdiction arises firstly in relation to the notification requirements of the claim for discrimination provided in Section 21 of the Act. This is a very important first step in pursuing a cause of action and that has required intense scrutiny in this case.

Next, I reference the definition of Discrimination provided in Section 3 of the Act

Discrimination (general).

3.— (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

Indirect Discrimination

(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) (i)

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

The Complainant has submitted his complaint as a member of the Traveller Community. His Status as a Traveller has not been disputed.

I then move forward to exploring the burden of proof outlined in Section 38 A of the Act.

Section 5 of the Act provides a clear direction against prohibited conduct.

Disposal of goods and provision of 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.

I commence these findings with some feedback on the Preliminary Issue of notification, so strongly contested in the case.

Notification of the Claim: Preliminary Issue

This was a strongly debated point in the approach to and during the hearing.

The claim was lodged before the WRC on 5 July 2022 at 16.25.12hrs. The Respondent was notified of this claim by letter dated 12 September 2022.

This prompted a response dated 4 November 2022. This reflected a statement of first awareness of the alleged incident by the respondent and prompted sight of the ES1 relied on as a foundation document in the case.

It is important for me to declare that the ES1 form relied on by the complainant was not attached to the WRC complaint of July 5, 2023.

The Respondent has raised a fundamental objection to the complainant’s argument that the ES1 form was served on the Respondent at the store location. Mr Sugrue pointed out considerable shortcomings on the viability and validity of the ES1 made out to have been served in the complainant’s name on May 3, 2022. He raised a concern at the variant in notification of ES1 to the local store and by July 5, 2022, the Complainant had directed the complaint to the Supermarket Head Office.

He concluded that the case could not advance beyond this preliminary point and strongly opposed the complainants hearing day application to either accept the ES1 as served or dispense with the notification requirements by direction.

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.

Section 21 of the Act provides:

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(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 under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court], 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.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.]

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court 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 of the Workplace Relations Commissionor, as the case may be, the Circuit Court 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.

(4) The Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

There is consensus that the occurrence at the centre of this case took place on 14 March 2022.

The Law at Section 21 requires the complainant to forward a specific notification of the claim for prohibited conduct within 8 weeks of the occurrence. That is on or before May 13, 2022.

The WRC advises potential complainants to use a 13-page ES1 form to capture this obligation and allow for questions, but that is not mandatory, Mongan’s v Clare County Council DEC -S2008-039

A user-friendly guideline on notification exists in handbook and online at WRC. 

It is the Complainant case that the document attributed to carriage on May 3, 2022, fulfilled that statutory obligation. It was the Respondent case that it was never received.

It is important to remember that I have an awareness that claims submitted under this Legislation may sometimes arise where parties may not know each other, as opposed to claims advanced under Employment Equality Legislation, which arise from a workplace proximity in the main.

For instance, the circumstances of this case arose from an inaugural visit by the complainant to the shop. He has not returned.

The very valuable period of 8 weeks notification period or 16 weeks by extension for reasonable cause allows for an early engagement as I saw in Battles. It may just be possible to secure an early resolution between the parties.

The notification must state the nature of the allegation, and carry a stated intention by the complainant, if he is dissatisfied with the respondent response, to seek redress under the Equal Status Act.

The ES1 ought to have reflected that the Complainant would have a next friend in the case. For example, A Minor in Iceland

Many of the cases relied on by the parties tussled with the degree of notification engaged in, the facts of this case are based on a declaration that the ES1 was sent on 3 May 2022 by the Complainant and a declaration by the respondent that it was not received.

Many of the cases reflected a perception of legacy behaviour at the respondent business or services. It is important to frame the circumstances of this case that neither party referred to or relied on any prior occurrence prohibited conduct or disruptive behaviour at the business, CT, distinguished.

In addition, the WRC cases relied on by the parties were standalone and with the exception of CT, advanced by me as Adjudicator, I was unclear whether they had been appealed to the Circuit Court.

In Jackson v Anns Hot Bread Shop DEC S2009 -018, the complainant could not establish that the respondent had received the notification, which she had delivered in person.

As the parties can see, the issue of notification and what occurred at this juncture forms a vital part of this case.

In analysing the evidence on this issue, the complainant himself was of little assistance as while the next friend accepted that he attended at the Solicitors Office, she was not in attendance. The signature of the complainant on the complaint form is not disputed.

I accept that he signed it at the consultation at his Solicitors office on 25 April 2022. However, I am not at all clear as to whether this ES1 ever left that office.

I accept the points of concern raised by the respondent. The ES1 relied on by the complainant was undated. There is no proof of postage or tracking. It was not registered.

I have been given copies of telephone memos of 6 April 2022, one day after an apparent consultation with the complainants Solicitor where a statement was sought from all complainants. I have not had the benefit of sight of that statement.

I have been provided with a copy of a cover note where the occurrence of 14 March 2022 was referred to as “an unfortunate incident “and was linked to ES1 and ES2 enclosed. This sought a response within 1 month.

I am not happy with this cover note and inquired for sight of the Letterhead used. This was not available to me as it was not usual practice to retain it. For me, at least, it stood in marked contrast to the visible letterhead retained on 30 May inter party correspondence in May 2023.

I have not received any record of the ES1 or ES2 issuing from any client file on that day. The complainants next friend was unaware of the ES1. This stood in marked contrast to the record of telephone memos. I was struck by that inconsistency.

On a close examination of the ES1, the indentations on page 2 are at variance with pages 1, 3, 4 and 5. They are recorded in black, the others in blue.

I have sight of an email dated 29 April 2022, where the complainants older brother sought an update. He was informed on the same day that “the claims have been submitted. They have a month to respond “by the Solicitors.

That was a number of days before the ES1 was attested to having been sent on 3 May 2022 and while I inquired into these variant statements at hearing, I did not receive a satisfactory or reassuring response from the complainants’ representatives.

A further email issued to the complainant dated 15 July 2022, which recorded a lack of response from the respondent and a statement of lodgement of claim with WRC. There was a reference to perhaps having sent a letter the week previous to the complaint, but no copy of that letter was exhibited.

I have considered the respondent evidence on this point. I accept Ms A’s point that she did not have sight of the ES1 at the store. She did not know what it was I found her evidence plain speaking, but truthful.

I cannot agree that the Complainant was bound to notify head office as opposed to the local store. for me, it actually makes sense to notify the location of the occurrence first in time.

I have reflected on the submissions and evidence in this matter, and I find that the absence of the date recorded on the ES1 relied on by the complainant is a significant factor in my determination on viability and validity of the ES1 notification.

The Complainants Solicitors are a very prominent firm of Solicitors in Cork. I have found that on the balance of probability, had a bulky letter (inclusive of ES1 and ES2 forms) as attributed to the correspondence dated 3May, 2022 been received with this letterhead at the local store, I must conclude that due notice and attention would have been applied to it.

However, I also rely on the same viewpoint on the absence of a date on the ES1. A correct date forms the genesis of all legal documents and is central to the validity of a notification under Section 21 of the Act. The clock starts ticking in the statutory time limit clock once that date is proved.

  It has not been possible for me to accept the ES1 relied on by the complainant as a valid notification in this case in the absence of that date.

The next friend did not attend the 25 April 2022 Consultation at the Solicitors Office where the ES1 was attributed as signed. I could not glean clarity on this topic from Ms Buttimers direct evidence. I have not found certainty on that date. The space for date is simply unpopulated. The Complainant did not establish an ownership of the ES1 form. I note that page 2 is ticked differently on all three Es1s relied on in these cases. This gives credence to their commencement at a minimum, but not their completion.

I conclude that preparations were underway at the Solicitors office to action an ES1 but by oversight and mistake rather than active omission, the ES1 form did not leave the building and was not received by the Respondent as stated. I have been given the fragments of an incomplete document that was not validated.

Like all mistakes, significant learning opportunities arise here, and I can only suggest that the representatives give some thought to a more robust system for ES1 processing and advancement.

 I cannot accept that the claim was notified in accordance with section 21 of the Act. The ES1 before me is invalid.

Application for a Direction to dispense with notification, Section 21(3) (ii)

I must now consider if it is possible for me to give a direction to dispense with the notification requirements in this case in accordance with Section 21 (3) (ii)?

This is a discretion reserved for exceptional circumstances and is predicated on fairness and reasonableness.

In addition, I must have regard for whether the Respondent was aware of the circumstances and the extent of any risk of prejudice to their ability to deal adequately with the complaint.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court 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.

I have commenced an investigation into this complaint in accordance with section 25 of the Act. I have endeavoured to look under the bonnet of the circumstances relied on by both parties.

The case of Andrew Ennis has been commented on by both parties, but Andrew Ennis was a lay litigant and was a visibly strong advocate in his own case. I also note from the case that the Respondent was found to have reacted to the statement of claim very early on in proceedings. This is in marked contrast with the facts in the instant case. That case involved access to securing car parking on disability grounds.

In this case the complainant is represented legally and has been from April 2022.

The Respondent has argued that due to the delayed notification in the claim, some 5 months post the occurrence, the CCTV footage (silent) was not retained as the retention rule was 30 days and no more within GDPR rules. This Policy was not exhibited, but I accept the statement as a Company position.

Mr Sugrue submitted that this disadvantaged the Respondent in their defence of the claim as it was their case that anti-social behaviour and not discrimination formed the antecedent event and not having access to records that would clarify this were now lost to them.

For my point of view a 30-day retention of records of GDPR at the company clashes with the statutory notification timelines of Section 21 of the Equal Status Act 2000. This may be something the parties could reflect on.

The Respondent had access to a retained record attributed to the occurrence in an Occurrence log for #210 site compiled by Mr B. However, there was no date on this record or confirmation of a procedural framework.

Mr Bs own evidence and that of Ms A placed them in the store on the 14 March 2022.

It is clear that the Video recording on 14 March 2022 was not shared at hearing, I requested it and was informed it was no longer in existence. This placed evidence out of reach for my investigation. The parties will understand that I must draw inferences from that vacuum. I say this as the submissions reflect that the recording was in the complainant’s client file prior to hearing in June 2023. Ms Buttimer acknowledged in her file note that she had seen this and reflected that Ms A confirmed that she didn’t need to give a reason for expulsion   from the store.

I have reflected on the complainant’s application for a direction to dispense with the notification requirements in this case and I find that I have identified exceptional grounds to grant this.

The complainant cannot be fixed with responsibility for the oversight and mistakes in forwarding the ES1 to the Respondent. His case was being managed by his representatives and the process of notification got lost internally, it seems.

The Labour Court in Aldi Stores (Irl) ltd and Murphy in EE 043 excused the complainant from personal responsibility for omission while legally represented.

The Respondent is fully aware of the circumstances of the case and has an undated log and witnesses available to give evidence.

I accept their reservation about the lack of CC TV footage available in the case. However, an inquiry can be conducted through direct evidence and cross examination of all present at the store on 14 March 2022.

I have not received any reason why the phone records actioned by the complainant in the adjunct case were not retained and exhibited. Neither have I received notification of the date of deletion.

However, the next friend has demonstrated a strong personal consciousness of right in regard to how her son was treated during a shop visit.

I find that it would be unfair and unreasonable to exclude him from having his substantive case heard in the spirit of the objective of the Equal Status Act.

I grant the direction to dispense with the notification requirements under Section 21(3) (ii) of the Act on exceptional grounds and now press on with the substantive matter.

Substantive Matter.

Section 38 A of the Equal Status Act 2000 places the burden of proof at the feet of the complainant in this case.

Burden of proof. 38A. — (1) Where in any proceeding’s 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.

If facts are raised from where I can safely determine that prohibited conduct has occurred, this burden is then reversed placing the respondent in the zone of having to prove the contrary.

As the Circuit Court written Judgement in CT and Dunnes Stores unlimited Company [2023] IECC 4 had been decided in the complainants’ favour and delivered a number of weeks previous on 18 May 2023, I was keen to have comments on whether this case had application in the instant case? I am grateful to the parties for their comments.

This was a decision which held that two members of the Roma Community had been discriminated against on race grounds on their expulsion from a Store by a Security Officer in November 2019.

Pointed recommendations were incorporated in the judgement to mitigate a similar reoccurrence.

1 avoidance of assumptions or reliance on memory alone where previous incidents occurred.

2 records keeping

3 combine empathy with objectivity, adequate training.

4 complaint handling mechanism

5 apologies

I have reflected on the evidence in this case and the first thing that I am struck with is a demonstration of an unshakeable belief by the next friend that he was not treated equally to non-traveller customers as he visited the respondent shop for the first time. I accept that he is a proud member of the Traveller Community. I accept that the next friend was motivated by an inter-generational support for her son.

 He did not make a purchase at the shop and was not denied service in that regard. His claim is that within a 5-minute period from his arrival at the store that he was requested to leave the store with a rider that his type, interpreted as traveller, was not welcome there. The facts do not place him as the inquisitor on securing a rationale for this.

The evidence was given very much as a mother fighting for a son rather than an objective analysis of what had occurred. It focused on the impact of exclusion rather than is any antecedent events had contributed to the expulsion.

However, given that it was accepted by all that the phone was used to record the period immediately after the expulsion was announced and that phone, unlike the CC TV would have had volume, it is a point of considerable note that no application was made to include this contemporaneous record in my investigation, but worse, I was informed that  it was removed and deleted from the phone .

I have to draw inference from this deliberate deletion of a contemporary record, where the complainant carries the burden of proof of discrimination.

The Respondent has a conflicting version of events, where Ms A by her own admission was brow beaten from repeated exposure to anti-social behaviour at the store. I found her narrative to be cogent as she clearly said what she saw and heard, albeit that her memory on exact content of “cheek “attributed to the oldest complainant was dimmed by time.

I accept that Ms A was unaware of the complainants Traveller status on 14 March 2022. I was particularly struck by her reference that she responded to the complainant as she would to the Pope. I found a strong sense of bewilderment in her evidence on the prevalence of anti-social behaviour at the store.

I am mindful that this case is distinguished from CT, where the complainants were dressed in their “traditional attire “and thus identifiable as being members of a specific ethnic grouping.

I have no evidence on the complainant’s attire.

I found Ms As version of events to be credible, I accept that she responded to what she observed was undue interference with company goods.

I could not establish that she had a vested power to bar anyone or just where she drew down or communicated the one night only ban.

What I found was a hard-working deputy manager who was fed up having to manage disruptive behaviour as well as her work. I could not establish that she had access to any store guideline on how she should respond or how she should record the matter or even at what point she should seek the security guard intervention or gardai as in CT.

I have found a tired manager at 9 pm in the evening, fed up with having to exercise a management strategy for challenging behaviour without sufficient tools.

I have identified a missed opportunity in not adequately recording the issue or even in seeking to de brief. Instead, I accept Mr Bs evidence when he stated that Ms A carried on to the warehouse after the altercation without further remark.

Mr B is the sole person who viewed the CC TV footage, before it also disappeared. Once more, I found Mr B very credible in what he recalled but equally uncertain on possible pathways of intervention open to him outside of the shop lifting policy, which has no relevance to this case. He found nothing remarkable in the demeanour of the three complainants in these cases on exit.

I am not inspired by the respondent’s policy on diversity and inclusion as it is employee rather than customer centric.

I find that skills acquisition in de-escalation of challenging behaviour in customer service with transparent reportage and audit would greatly assist the respondent and external security staff.

Having listened to all parties and carefully considered the evidence adduced.

I have identified that what occurred between the complainant and the respondent store on 14 March 2022 was challenging behaviour initiated by the complainant which was not managed well at the end of a working day.

I accept that the complainant was told the leave the store. I do not accept that he challenged this and sought to reason with Ms A and Mr B. Instead, he went straight to his Solicitor on the suggestion of his next friend, such was the strength of his belief of being wronged.

I would have preferred if the parties to this case could have sat down in a supportive structure that next day to seek to resolve the matter directly with the store.

The empathy reflected by O Connor J in CT has a special place for both parties in this case. If both parties had had an opportunity to analyse what happened shortly after the occurrence, the matter may have been mutually resolved. Instead, the matter trundled on to hearing where both parties had strong views that they were wronged.

The Complainant wasn’t to know that his behaviour was being viewed as yet another incident in a long running saga of challenging behaviour. He and his next friend would have benefited from that exchange in a safe space.

He did not accept that context on the hearing day. However, the evidence of Ms A and Mr B has led me to that conclusion. I have found that the complainant engaged in challenging behaviour on this occasion.

Taking everything into consideration, I cannot find that the treatment extended by the respondent to the complainant was based on his Traveller status. The statement that Ms A said she would have said the same to the Pope has stayed with me in that regard.

It is clear that Ms A believed that a removal from the store was the sole tool at her disposal. I would have liked to have seen a more pronounced supportive framework inclusive of aids in managing challenging behaviour.

The treatment was a tired response to challenging behaviour and not prohibited on this occasion. It was clear to me that removals of customers from the store had been universally practiced at the store. It was an uncoordinated and undocumented response which was not audited.

 I can understand how the next friend may have interpreted the action of exclusion as discrimination at the very outset.

However, a hearing is meant to drill down to clarify issues as yet unclarified. I hope these findings go some way to that objective.

Both parties would have benefitted greatly from bringing contemporaneous records to this case.

I find that the complainant was not discriminated against on grounds of his traveller status contrary to Section 3(1) Section 3(2)(1) and section 5(1) of the Equal Status Act, 2000. 

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I find that the complainant has not attained the necessary burden of proof in accordance with Section 38 A of the Equal Status Act 2000. I have not established that he was discriminated against by the respondent in the provision of goods and services to Section 3(1) Section 3(2)(1) and section 5(1) of the Equal Status Act, 2000. 

Claim for discrimination on grounds of membership of the travelling community