Complainant

Respondent

Parties

Heleasha  Mongan

Lidl Ireland

Representatives

Domhnall Ó Scanaill, Ó Scanaill & Co.

 Sorcha Finnegan, Director of Legal & Compliance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053620-001

10/11/2022

On 09/09/2022 the Complainant, Helesha Mongan, was shopping in one of the Respondent’s supermarkets.  After completing her shopping, she paid the till operator and when leaving the store, she was asked by an assistant manager for her receipt to check if a packet of nappies were paid for.  The receipt confirmed payment. The Complainant alleges that this action amounted to discrimination on the grounds of her being a member of the Traveller Community.  The Respondent denies that the Complainant was treated less favourably than another person who is not a member of the Traveller Community.  The Respondent submits that they acted in accordance with standard retail practice and these actions were not influenced by whether or not the Complainant was a member of the Traveller Community.

The Complainant gave evidence on oath.  She was living in a city centre location which was about five minutes’ walk from the Respondent’s supermarket. She attended the supermarket on 09/09/2022 accompanied by her husband and infant child who was in a pram.  The Complainant completed her shopping and placed them for scanning by the till operator.  She put her goods away and got ready to pay. She was asked by the till operator “Is that all”?  She confirmed that that was it and paid the till operator.  She placed the nappies on a shelf under the child’s pram.  The Complainant gave evidence that as she proceeded to exit the supermarket§§ she was asked by an assistant manager if she could look at her receipt to check if she had paid for the nappies.  The manager examined the receipt and was happy that the Complainant had paid for the nappies. 

This took place while there were a number of people around and it looked like she was being accused of not paying for goods.  This caused the Complainant a lot of stress and she was annoyed that she was singled out for checking.

The Complainant went back to the supermarket about 5-10 minutes later and asked to see a manager.  A manager apologised and gave her a bottle of water and gave her a telephone number for the corporate complaint’s office.    The Complainant went back an hour later to purchase a can.  She contacted her solicitor later.

Under cross examination the Complainant confirmed that she was a regular customer in the supermarket.  She confirmed that she never felt this way previously.  It was put to the Complainant that the deputy manager explained that the till operator was new and was unsure if she scanned the nappies and brought this to the attention of the deputy manager to check.  The Complainant was asked if the deputy manager made any reference to her being a member of the Traveller Community and the Complainant confirmed that she did not.  It was put to the Complainant that when the till operator asked her if that was all there was no suggestion of anything in that remark.  It would be a standard question.  The Complainant stated that she was not sure what was meant by the remark.  The Complainant confirmed that the deputy manager stated that she wanted to check the receipt to see if the nappies were paid for and the Complainant also confirmed that she let the deputy manager look at the receipt.  The Complainant also confirmed that the deputy manager apologised to her for the inconvenience, but she stated that she got no apology from the till operator who was the person who asked the deputy manager to check.  The Complainant was asked again if there was any reference to her being a member of the Traveller Community and she confirmed that there was none.

The Complainant was asked to explain what she meant in her complaint form when she stated that “People were staring at me, and it was obvious to all concerned that I was being challenged on suspicion of shoplifting/theft and that I was being detained for that purpose”.   The Complainant stated that when someone asks to see your receipts there is an implication of shoplifting and this made her feel discriminated against.  It was put to the Complainant that the entire interaction took 22 seconds and the complaint said that the incident felt like discrimination to her.  The Complainant was asked if the words “stealing” or “shoplifting” were used and she confirmed that they were not but the Complainant felt that if there was an issue she should have been asked at the till and not when she was about to leave the supermarket.  The Complainant said that the exit was very small and everyone there could see what was happening. 

In re direct the Complainant was asked if she believed that what happened to her would happen to a person who was not a member of the Traveller Community and she said that she did not think it would.

In closing comments, the Complainant’s representative noted that the till operator was not present at the hearing to give evidence.  It was this person’s actions that led to the incident.  It was significant that the deputy manager in her evidence did not know what membership of the Traveller Community was.  The Respondent did not provide a copy of the CCTV despite stating that it would be made available. 

In relation to the alleged discrimination, it was not a matter of perception – the Complainant was treated differently because of who she is.  She was singled out twice by the till operator and then the deputy manager rushed to stop the Complainant at the door rather than seek a copy of the receipt at the till.  This happened to the Complainant, and it would not have happened to any other person who was not a member of the Traveller Community. 

The Respondent is a supermarket chain which provides goods to the public.  The Complainant attended one of its stores on 09/09/2022.  The Respondent denies any wrongdoing and submits that it is standard practice within the retail trade that on occasion employees may be required to ask customers to produce a receipt in order to ensure that all goods have been scanned correctly at the tills.  The Respondent submits that the Complainant was approached on 09/09/2022 for a genuine purpose which arose from an error on the part of a new till operator.  The Respondent’s actions were both lawful, legitimate and in no way influenced by the Complainant’s membership of the Traveller Community.

It was submitted on behalf of the Respondent that it was reasonable for a new till operator to require assistance from a more experienced colleague.  The new till operator was unsure as to whether she had scanned an item at the checkout.  On foot of this she notified a more experienced member of staff that she was concerned that she may not have scanned an item (nappies) and the customer was about to leave the store.

Ms Li Ying, Deputy Store Manager gave evidence on affirmation on behalf of the Respondent.  Ms Ying outlined that she had worked for the Respondent for 18 years.  She outlined the training which she received, and this included Dignity at Work, Diversity and Inclusion Policy and Defamation Policy.  Ms Ying outlined that on 09/09/2022 she was on duty, and she was working on Till no 1 while the new till operator was working on Till no 3. Ms Ying gave evidence that the new till operator told her that she was unsure if she charged a customer (the Complainant) for a packet of nappies.  Ms Ying said that she approached the Complainant and asked to look at her receipt.  She apologised for doing so and she observed that the nappies were paid for.  Ms Ying also confirmed that it was normal policy to ask a customer to check their receipt. 

Ms Ying was cross examined by the Complainant’s representative.  She was asked how she was alerted by the till operator on till no 3 about her concerns.  Ms Ying said that the till operator on till no 3 “leaned across to me” and she went over to her.  She had to void an entry on the till and Ms Ying confirmed that when there is a “void” this does not show on the customers receipt.  Ms Ying gave evidence that the till operator on till no 3 leaned over on a second occasion and told her that she was not sure that she had scanned a packet of nappies for a customer.  Ms Ying stated that she left her till and spoke to the customer.  Ms Ying was asked why she did not print off a copy of the customer’s receipt and check that.  She outlined that the till terminal cannot print off a second copy if the till is in use for another customer.  There is no facility to view or print off a previous receipt.  This can only be done by submitting a request to head office.  Ms Ying confirmed that the till operator told her that she thought that she forgot to charge the Complainant for the nappies.  Ms Ying said that she was satisfied that the nappies were paid for once she looked at the receipt.  Ms Ying was asked if she was aware that the Complainant was a member of the Traveller Community.  Ms Ying gave evidence that she did not understand the question.  It was put to Ms Ying that the Respondent provided evidence that she had undertaken a Diversity and Inclusion training programme and that she would have understood what being a member of the Traveller Community was.  Ms Ying confirmed that she did not understand.

Ms Slavica Gerstman, Deputy Store Manager, gave evidence on oath on behalf of the Respondent.   She confirmed that she was working for the Respondent for a period of three years.  Ms Gerstman gave evidence that she was notified by the Complainant about the incident. 

Mr Lamine Kourouma, Security Officer, gave evidence on affirmation on behalf of the Respondent.  He outlined that he had no role in relation to the incident involving the Complainant.  He also gave evidence that he would not be involved in any process to check the receipts of customers.

In a closing submission the Respondent’s representative stated that they refute that the Complainant was subjected to any discriminatory treatment. It was submitted that a full defence was provided.  Ms Ying’s approach to the Complainant on 09/09/2022 was a legal entitlement to ask a customer to verify a purchase.  This process is undertaken with all customers regardless of race, colour or creed.  The Complainant was given a telephone number in order to progress her complaint but the first contact the Respondent had was from her legal representative on 28/09/2022.  The Complainant has failed to clarify and prove that she was treated less favourably due to her membership of the Traveller Community.  The Respondent’s customer assistants receive training, and they understand the discriminatory grounds.  The customer assistant who served the Complainant is no longer an employee and  was not available to give evidence at the hearing.  Ms Ying was the appropriate person to give evidence as she was the person who spoke to the Complainant.   The Respondent does not tolerate discrimination, and the Complainant has failed to provide prima facia evidence that she was discriminated against.

The Respondent’s representative also cited a number of cases which she submitted are most relevant to this case.  The case of Thomas Keenan v Topaz Energy Limited, ADJ-00011225, noted that the actions of the Respondent could not be attributed to the Complainant’s membership of the Traveller Community.  The same applies in the instant case.

The case of Veronica Battles v Black Cap & Company Limited, ADJ-00023864, is also relevant as the Complainant was not denied the goods and services she sought to purchase.  In the instant case the Complainant was never refused any service or goods.

The case of Rosie McDonagh and Next Department Store, DEC-S2001-002, is also relevant as the Equality Officer found that the Complainant’s treatment was not related to her membership of the Traveller Community.

The case of Julie Pamela McGinley v Smyths Toys Superstores, ADJ-00031660, provides a helpful similarity to the instant case.  In that case the Complainant was stopped by a security officer when leaving the store and asked to return to the till to pay for the goods in her arms.  The Complainant in that case was upset about what happened but the security officer was not aware of who might or might not be a member of the Traveller Community and therefor the Complainant failed to establish a prima facie case from which the inference of discrimination could be drawn.

The Respondent’s representative submitted that the Complainant was, at that time, a regular customer who had never been refused any service or goods.  She visited the store afterwards and made purchases.  There was no evidence that there was any language or inference that the Complainant was a member of the Traveller Community.   The actions of the Respondent arose purely from a legitimate error on the part of a new customer assistant and the actions were in no way attributable to or influenced by the Complainant’s membership of the Traveller Community.  These actions did not constitute any prohibitive conduct.

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. Prior to making such a referral there is a requirement that the Complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This notice in writing shall be brought within two months of the alleged prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

The Respondent was notified by the Complainant’s legal representative on 08/11/2022 and this included the ES 2 form.    The Respondent replied to this form by way of letter dated 22/12/2022 and confirmed that this was their ES 2 response.    The Complainant submitted her complaint to the WRC on 10/11/2022.

I am satisfied that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts.  Accordingly, I find that I have jurisdiction to investigate the complaint of discrimination in this case.

The issue for decision by me is, whether or not the Respondent discriminated against the Complainant on the Traveller Community ground as provided for in sections 3(2) of the Equal Status Acts, 2000-2015. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

“(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) (in this Act referred to as the ‘‘discriminatory grounds””.

In the within claim, it is alleged that the prohibited conduct arose because “(i) that one is a member of the Traveller Community and the other is not (the “Traveller Community ground”), and Traveller Community is defined as:

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

Section 38A (1) provides that the burden of proof is: " 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." It requires the Complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred.

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. I am satisfied, in the within claim, that the Respondent is providing a service within the meaning of the Equal Status Acts.

The Complainant advised the hearing that she is a member of the Traveller Community. The Complainant asserts that she was treated less favourably on the grounds of her membership of the Traveller Community.  The Complainant is thus required to demonstrate that a prima facie case of discrimination exists.

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 facie case the focus is on the Complainant’s own evidence. In her direct evidence she describes that she was asked by a manager if she could look at her receipt. The Complainant also gave evidence that at no stage was she accused of stealing or shoplifting.  The Complainant also confirmed that there was no reference to her being a member of the Traveller Community.  The Complainant also confirmed that the manager explained the reasons for checking the receipt and apologised for any inconvenience.

Based on the evidence I find that the Complainant has not established a prima facie case upon which discrimination can be inferred based on her membership of the Traveller Community.  I accept that the incident was distressing for the Complainant.  However, the Respondent’s manager who checked the Complainant’s receipt was clear that she was checking if the till operator had properly scanned the item.  There was no evidence that there was any action, language or behaviour which could be construed as being discriminatory in nature. I find no evidence that the checking of the receipt by the Respondent’s manager was attributable to the Complainant’s membership of the Traveller Community.

In accordance with Section 25(4) of the Equal Status Acts, I have concluded the investigation and I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of membership of the Traveller Community in terms of sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts.  Accordingly, this complaint fails.

Discrimination.  Traveller Community