Complainant

Respondent

Parties

Yen Ting Ho

Ogalas Unlimited Company

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00052872-001

19/09/2022

On 18th May 2022, the Complainant correspondenced with the Respondent alleging a breach of the Equal Status Acts. By response, dated 24th May 2022, the Respondent denied the allegations raised by the Complainant and stated that she had not suffered any form of discrimination. Thereafter, on 19th September 2022, the Complainant referred a complaint under the Equal Status Acts to the Commission.

Herein, she alleged that the Respondent had discriminated against her on the grounds of gender and family status. In particular, the Complainant alleged that she was not properly facilitated in breastfeeding her child in one of the Respondent’s stores. By response, while acknowledging that the Complainant has a right to breastfeed on their premises, the Respondent denied, on a factual basis, the allegation that they did not facilitate the same.

A hearing in relation to this matter was convened for, and finalised on, 26th June 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her complaint, while a store manager, and operations manager and a store assistant gave evidence in defense.

At the outset of the hearing the parties agreed that the notification requirements imposed by the Act had been complied with. No other issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she attended the Respondent’s premises on the afternoon of 21st March 2022. Shortly following her arrival at the store, the Complainant asked if there was a place where she could breast feed her seven-month old child.

While a member of staff did indicate that the Complainant could sit on some chairs by the tills for this purpose, another member of staff indicated that she would have to speak with the manager in this regard. Shortly thereafter, this member of staff came back and informed that Complainant that she would bring her to the toilet, to which the Complainant replied that she did not intend to feed her child in a toilet. By response, the staff member stated that the area was outside of the toilets and led the Complainant towards to area.

When the Complainant got to the area, she became concerned that the same was an isolated, cold, concrete area located outside the entrance to the toilets. The Complainant was further concerned that the speaker in the area were quite loud and would disturb her child. At this juncture, the Complainant asked if she could breastfeed her child in the bedlinen area, to which the staff member replied that the area she was taken to was the only place where the Complainant could breast feed her child. In circumstances whereby the area provided for breast feedings purposes was entirely unsuitable, the Complainant left the premises.

The Complainant stated that she found the incident degrading and humiliating. She stated that as a nursing mother she should not have been forced into an inappropriate area for these purposes and that she should have been permitted to breastfeed elsewhere. She submitted that this treatment constituted discrimination on the grounds of gender and family status.

In denying this allegation, the Respondent accepted that the Complainant had a right to nurse her child on their premise but denied that they prevented her from doing so in any manner.

The Respondent accepted that the Complainant attended their premises on 21st March 2022 and asked to breastfeed her child. Following receipt of this request, the store assistant sought instruction from the store manager. At this point, both employees agreed that the safest area for both mother and child was the back of the store, which is restricted to staff only. A chair was provided for the Complainant use in this regard, and the store assistant led the Complainant to the area. On arrival at the area, the Complainant stated that she believed that the area was inappropriate for her purposes and asked to breastfeed in the bedlinen section of the store. Due to the large fixtures and displays in this area, the store assistant advised that this area would be inappropriate, and that the area provided was the safest in this regard.

By submission, the Respondent denied that they had discriminated against the Complainant on any grounds. In this regard, they submitted that on receipt of her request they sought out a secure, comfortable area for her purposes. They denied that this area was inappropriate, with the store manager and the store assistant stating that music is not particularly loud in that area, and that it was not poorly lit.

In answer to a question posed by the Adjudicator, the store manager stated that the Respondent does not have any policy in respect of requests by customers to breastfeed on their premises. 

The present complaint relates to an allegation by the Complainant that she was provided with an inappropriate area to breastfeed her child and was not permitted to do so in the public area of the Respondent premises. On these grounds, the Complainant has submitted that she was discriminated against on the grounds of her family status and gender by the Respondent, the provider of a service. In denying this allegation, the Respondent submitted that they facilitated the Complainant in providing a secure, appropriate area to breastfeed her child. While they accept that the Complainant did request to breastfeed in a public area, they submitted that this area posed a danger to the Complainant and her child and was not permitted on these grounds.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or  a section of the public, and without prejudice to the generality of the foregoing, includes…

(a) access to and the use of any place”

Section 3(1) provides that discrimination occurs,

“..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)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2) lists “gender” and “family status” as such grounds.

Regarding such discrimination arising in an employment context, in the matter of Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), the ECJ found that pregnancy is a uniquely female condition. As a consequence of the same, where woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender. While the present matter does not relate to pregnancy, the matter at hand is a similar “uniquely female condition” and discrimination arising from the same will constitute discrimination on the grounds of gender.

Regarding the burden of proof in respect of such claims, Section 38A(1) provides that,

"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 the matter of In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court, in considering a similar burden of proof under the Employment Equality Acts, held that,

“…mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Regarding the instant case, no material dispute exists as to the relevant factual matrix. In this regard, it is agreed that the Complainant sought to breastfeed her child in the Respondent’s premises. While an area was identified for this purpose, the Complainant submitted that the same was inappropriate, for a variety of reasons. Thereafter, she was denied access to the public section of the premises for this purpose. Having regard to the foregoing, it is clear that the primary facts from which a presumption of discrimination may be inferred have been established.

Regarding the rationale for the refusal to allow the Complainant to breastfeed in the public part of the premises, the same was said to be safety concerns for both the Complainant and her child. The first point to note in relation to the same was that no evidence of any description, aside from the testimony of the witnesses, was provided in relation to the potential dangers posed to the Complainant. In this regard, the Respondent could not rely in any formal risk assessment that might support their conclusions in this respect. Finally, it is not all at all apparent what, if any, safety concerns arise from the Complainant’s request to breast feed her child in the bed linen section of the store. While the Respondent did submit that this area tends have large displays, it can be safely assumed that such displays are stationary for the majority of the time. It is also apparent that these displays don’t give rise to safety concerns for any of the Respondent’s other customers.

Having regard to the totality of the evidence presented, I find that the Respondent engaged in prohibited conduct and the complaint is consequently deemed to be well-founded. In so finding, it is apparent that the Respondent did not intend to discriminate against the Complainant or, indeed, cause her any form of displeasure. Rather, it is apparent that the Complainant’s request was fulfilled in an ad hoc fashion, leading to the present unfavourable outcome. In this regard, the Respondent accepted that they have no policy in respect of such requests and the Complainant’s was responded to the best of their ability in the moment.

Regarding redress, Section 27(1) of the Act (as amended) provides that,

“…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.”

Having regard to the foregoing, I award the Complainant €1,000 in respect of the effects of the prohibited conduct. In addition to the foregoing, in accordance with subsection b listed above, I direct that the Respondent devise a policy in respect of requests by members of the public to breastfeed in their premises within one month of the date below.

In circumstances whereby Section 2(1) defines “prohibited conduct” as, “discrimination against…a person in contravention of this Act”. I find that the Respondent has engaged in prohibited conduct within the meaning of the Act.

Regarding redress, Section 27(1) of the Act (as amended) provides that,

“…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.”

Having regard to the foregoing, I award the Complainant €1,000 in respect of the effects of the prohibited conduct. In addition to the foregoing, in accordance with subsection b listed above, I direct that the Respondent devise a policy in respect of requests by members of the public to breastfeed in their premises within one month of the date below.

Breast Feeding, Equal Status, Service Provider

Complainant

Respondent

Parties

Yen Ting Ho

Ogalas Unlimited Company

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00052872-001

19/09/2022

On 18th May 2022, the Complainant correspondenced with the Respondent alleging a breach of the Equal Status Acts. By response, dated 24th May 2022, the Respondent denied the allegations raised by the Complainant and stated that she had not suffered any form of discrimination. Thereafter, on 19th September 2022, the Complainant referred a complaint under the Equal Status Acts to the Commission.

Herein, she alleged that the Respondent had discriminated against her on the grounds of gender and family status. In particular, the Complainant alleged that she was not properly facilitated in breastfeeding her child in one of the Respondent’s stores. By response, while acknowledging that the Complainant has a right to breastfeed on their premises, the Respondent denied, on a factual basis, the allegation that they did not facilitate the same.

A hearing in relation to this matter was convened for, and finalised on, 26th June 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her complaint, while a store manager, and operations manager and a store assistant gave evidence in defense.

At the outset of the hearing the parties agreed that the notification requirements imposed by the Act had been complied with. No other issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she attended the Respondent’s premises on the afternoon of 21st March 2022. Shortly following her arrival at the store, the Complainant asked if there was a place where she could breast feed her seven-month old child.

While a member of staff did indicate that the Complainant could sit on some chairs by the tills for this purpose, another member of staff indicated that she would have to speak with the manager in this regard. Shortly thereafter, this member of staff came back and informed that Complainant that she would bring her to the toilet, to which the Complainant replied that she did not intend to feed her child in a toilet. By response, the staff member stated that the area was outside of the toilets and led the Complainant towards to area.

When the Complainant got to the area, she became concerned that the same was an isolated, cold, concrete area located outside the entrance to the toilets. The Complainant was further concerned that the speaker in the area were quite loud and would disturb her child. At this juncture, the Complainant asked if she could breastfeed her child in the bedlinen area, to which the staff member replied that the area she was taken to was the only place where the Complainant could breast feed her child. In circumstances whereby the area provided for breast feedings purposes was entirely unsuitable, the Complainant left the premises.

The Complainant stated that she found the incident degrading and humiliating. She stated that as a nursing mother she should not have been forced into an inappropriate area for these purposes and that she should have been permitted to breastfeed elsewhere. She submitted that this treatment constituted discrimination on the grounds of gender and family status.

In denying this allegation, the Respondent accepted that the Complainant had a right to nurse her child on their premise but denied that they prevented her from doing so in any manner.

The Respondent accepted that the Complainant attended their premises on 21st March 2022 and asked to breastfeed her child. Following receipt of this request, the store assistant sought instruction from the store manager. At this point, both employees agreed that the safest area for both mother and child was the back of the store, which is restricted to staff only. A chair was provided for the Complainant use in this regard, and the store assistant led the Complainant to the area. On arrival at the area, the Complainant stated that she believed that the area was inappropriate for her purposes and asked to breastfeed in the bedlinen section of the store. Due to the large fixtures and displays in this area, the store assistant advised that this area would be inappropriate, and that the area provided was the safest in this regard.

By submission, the Respondent denied that they had discriminated against the Complainant on any grounds. In this regard, they submitted that on receipt of her request they sought out a secure, comfortable area for her purposes. They denied that this area was inappropriate, with the store manager and the store assistant stating that music is not particularly loud in that area, and that it was not poorly lit.

In answer to a question posed by the Adjudicator, the store manager stated that the Respondent does not have any policy in respect of requests by customers to breastfeed on their premises. 

The present complaint relates to an allegation by the Complainant that she was provided with an inappropriate area to breastfeed her child and was not permitted to do so in the public area of the Respondent premises. On these grounds, the Complainant has submitted that she was discriminated against on the grounds of her family status and gender by the Respondent, the provider of a service. In denying this allegation, the Respondent submitted that they facilitated the Complainant in providing a secure, appropriate area to breastfeed her child. While they accept that the Complainant did request to breastfeed in a public area, they submitted that this area posed a danger to the Complainant and her child and was not permitted on these grounds.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or  a section of the public, and without prejudice to the generality of the foregoing, includes…

(a) access to and the use of any place”

Section 3(1) provides that discrimination occurs,

“..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)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2) lists “gender” and “family status” as such grounds.

Regarding such discrimination arising in an employment context, in the matter of Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), the ECJ found that pregnancy is a uniquely female condition. As a consequence of the same, where woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender. While the present matter does not relate to pregnancy, the matter at hand is a similar “uniquely female condition” and discrimination arising from the same will constitute discrimination on the grounds of gender.

Regarding the burden of proof in respect of such claims, Section 38A(1) provides that,

"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 the matter of In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court, in considering a similar burden of proof under the Employment Equality Acts, held that,

“…mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Regarding the instant case, no material dispute exists as to the relevant factual matrix. In this regard, it is agreed that the Complainant sought to breastfeed her child in the Respondent’s premises. While an area was identified for this purpose, the Complainant submitted that the same was inappropriate, for a variety of reasons. Thereafter, she was denied access to the public section of the premises for this purpose. Having regard to the foregoing, it is clear that the primary facts from which a presumption of discrimination may be inferred have been established.

Regarding the rationale for the refusal to allow the Complainant to breastfeed in the public part of the premises, the same was said to be safety concerns for both the Complainant and her child. The first point to note in relation to the same was that no evidence of any description, aside from the testimony of the witnesses, was provided in relation to the potential dangers posed to the Complainant. The Respondent could not rely in any formal risk assessment that support their conclusions in this regard. Finally, it is not all at all apparent what, if any, safety concerns arise from the Complainant’s request to breast feed her child in the bed linen section of the store. While the Respondent did submit that this area tends have large displays, it can be safely assumed that such displays are stationary for the majority of the time. It is also apparent that these displays don’t give rise to safety concerns for any of the Respondent’s other customers.

Having regard to the totality of the evidence presented, I find that the Respondent engaged in prohibited conduct and the complaint is consequently deemed to be well-founded. In so finding, it is apparent that the Respondent did intend to discriminate against the Complainant or, indeed, cause her any form of displeasure. Rather, it is apparent that the Complainant’s request was fulfilled in an ad hoc fashion, leading to the present unfavourable outcome. In this regard, the Respondent accepted that they have no policy in respect of such requests and the Complainant’s was responded to the best of their ability in the moment.

Regarding redress, Section 27(1) of the Act (as amended) provides that,

“…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.”

Having regard to the foregoing, I award the Complainant €1,000 in respect of the effects of the prohibited conduct. In addition to the foregoing, in accordance with subsection b listed above, I direct that the Respondent devise a policy in respect of requests by members of the public to breastfeed in their premises within one month of the date below.

In circumstances whereby Section 2(1) defines “prohibited conduct” as, “discrimination against…a person in contravention of this Act”. I find that the Respondent has engaged in prohibited conduct within the meaning of the Act.

Regarding redress, Section 27(1) of the Act (as amended) provides that,

“…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.”

Having regard to the foregoing, I award the Complainant €1,000 in respect of the effects of the prohibited conduct. In addition to the foregoing, in accordance with subsection b listed above, I direct that the Respondent devise a policy in respect of requests by members of the public to breastfeed in their premises within one month of the date below.