Complainant

Respondent

Parties

Adel  Sallam

Aldi (ireland) Limited

Representatives

Maurice Osbourne BL instructed by Tallans Solicitors

Lorna Lynch SC instructed by Vincent & Beatty LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045507-001

30/07/2021

It is the Complainant’s claim that he was subjected to discrimination on the grounds of race and gender in the Respondent’s store on 15 February 2021. At the hearing, the claim for discrimination on the ground of gender was withdrawn by the Complainant.

The Complaint Form was received by the WRC on 30 July 2021.  The ES1 Form sent to the Respondent was dated 7 April 2021 and the ES.2 Form completed by the Respondent and dated 28 April 2021.

The Complainant swore an Oath on the Qur'an with his wife swearing an affirmation. There were two witnesses who gave evidence on behalf of Respondent, the Store Assistant and Store Manager.

Submissions were exchanged in advance of the hearing by both parties with documents relied upon by the Respondent and CCTV relied upon by both parties. Both parties were availed of the opportunity to cross examine the witnesses.

The Complainant gave detailed evidence of his claim with the following being a summary of the relevant points only.

It was the Complainant’s case that he was discriminated on the grounds of race at the Respondent’s store in Drogheda, Co Louth. In detailing his background, the Complainant gave evidence that he moved in Ireland in 2008 from Egypt, had a family here and owned his own restaurant in the town.

The Complainant gave evidence that he was shopping in the store. When he had completed his shopping he went to till number 3 and placed some of this shopping on the conveyor belt at the checkout. He was told by the Sales Assistant at the checkout to ‘go to till number 1’ and he waved his hands at him. This direction was repeated a number of times to the Complainant and the Store Assistant waved his hands at him which the Complainant took issue with. The Complainant asked the Sales Assistant if he was closed, and he was told to go to till number 1. The light over the till remained green, the Complainant said, despite the Respondent telling him to go to till number 1.  

The Complainant described feeling ‘embarrassed’ and wanted the ground to open up. It was the Complainant’s case that the Store Assistant turned around to look at him instead of serving the customer who was at his checkout. He kept his head down. When he had paid for his shopping, he looked around at till number 3 and saw the Store Assistant serving other customers.

He moved to till number 1 and asked to speak to a supervisor after he completed his shopping. He then asked to speak to the Manager, which he did. There were several calls from the Respondent but once he said he was going to his Solicitor the calls stopped.

 The Complainant referred to the CCTV footage throughout his evidence.

The Complainant’s wife gave evidence that he was very upset when he returned to the carpark, and she advised that he get the name of the Manager he was speaking with.

The Respondent denied the claim and challenged the Complainant’s evidence in cross examination.

It was the evidence of the Store Assistant that he followed the Respondent’s procedures and when his checkout was quiet and there was no one at till number 1 he decided to close his till and return to his duties on the floor. It was his evidence that he confirmed he did finish serving the lady who was before the Complainant.

When the Complainant arrived at his checkout, he placed a few items including frozen peas on the conveyor belt and the Store Assistant told him that he was closing and to go to till number 1. He confirmed in his evidence that he repeated this to the Complainant.

The Manager of the Store gave evidence confirming the procedure around serving at the checkout and undertaking the daily store tasks with the Assistant based on till number 1 being the only all day till operator in the shop.

The Manager confirmed evidence that the Complainant did speak to him and asked for his name. It was his evidence that the Complainant complained about the poor customer service and with no reference to discrimination on the grounds of race.

Preliminary Objection

An objection was raised by the Respondent after the Complainant’s evidence that he had failed to establish a prima facia case of discrimination. It was submitted that in the 1.5 hours of direct evidence from the Complainant he described the service received from the Respondent on the date in question as being “disgusting”, feeling “embarrassed” and this being a “huge problem” however there was no mention or reference to race.  Consequently, the Complainant failed to discharge the burden of proof required under the Equal Status legislation.

Section 5 of Equal Status Act 2000 outlines the general prohibition of discrimination in the 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.

In order for a case to succeed under the Act, there is a clear onus on the Complainant to first establish that there was “prohibited conduct” in this case alleged discrimination by the Respondent. It is necessary for the Complainant to establish by way of comparator, named or hypothetically, that the Respondent treated him “less favourably than another person is, has been or would be treated”

With Section 3 (2) listing the grounds of discrimination:-

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

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)”

Having heard parties’ evidence in its entirety the facts of this case are for the most not in dispute. The parties both agree that the Complainant place some shopping on the conveyor belt at the checkout station, that the Respondent’s Store Assistant told him to go to till number 1 and motioned his hands as he said those words, the light above the check out remained red , the Complainant purchased his shopping at till number 1, the Sales Assistant turned and looked at the Complainant while he was at till number 1 , the Complainant spoke to a Supervisor and the Manager and complained about the poor service he believed he received and that the Store Assistant left his check out and returned albeit there is some disagreement around the time he was away from till number 3.

After carefully listening to the evidence of the Complainant there was no reference, suggestion, explicit racial remark or slur. In fact, at the end of his cross examination, the Complainant himself stated, “I did not say the word racism”. It was further accepted by the Complainant that this interaction may have been interpreted incorrectly by him. 

Upon inquiry to the Store Manager as to the basis of the Complainant’s complaint to him, it was confirmed it was” related to customer service he received was terrible”.  On this basis I cannot accept the submission that on the balance of probabilities that that an inference of discrimination on the ground of race can be drawn from the actions of the Respondent on 15 February 2021.

The absence of a comparator was put to the Complainant. It was submitted that due to the pixelation of the CCTV footage the Complainant was at a disadvantage as to providing a comparator. This is not accepted. The Complainant was very able to give detailed evidence at the hearing but there was a clear absence to any reference to a comparator and the alleged difference between how he was treated compared to any one else of a different race was treated in the Respondent’s store.

The reality to this case is that Complainant was not discriminated and/or treated less favourably than any other shopper in the Respondent’s store. I do not accept that the service he was afforded was any less than is provided to any other customer on that day or any other day. The equality legislation is not an avenue for addressing poor or perceived poor customer service and must not be abused.

I agree with the Respondent in that there was no reference whatsoever to race by the Complainant and he failed to establish a prima facia case of discrimination. Due to the particular circumstances of this case, I would go as far as finding this case relates to a trivial matter. Consequently, I am dismissing this case pursuant to Section 22 of the Equal Status Act 2000 (as amended).

The complaint is dismissed pursuant to Section 22 of the Equal Status Act 2000 (as amended).

Equal status-Discrimination – Race – Trivial Matter – Section 22