Complainant

Respondent

Anonymised Parties

A shopper

A Supermarket

Representatives

  Complainant’s sister

 Hannah Cahill BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050717-001

13/05/2022

The complainant was refused admission to the respondent’s store because the respondent incorrectly concluded that she had previously shoplifted.  The complainant suffers from an intellectual disability and her sister represented her at the hearing.

Evidence was given at the hearing under oath/affirmation by the complainant’s sister, the Security Manager for the Respondent and the Store Manager.  All evidence was subject to cross examination. The complainant suffers from and intellectual disability and therefore I have decided to anonymise the parties.

The complainant was refused entry to the respondent’s store on the 18th of November 2021. A security guard approached her as she walked towards the entrance and said ‘you are not allowed in here’. Later that day, the complainant’s sister phoned a manager at the store and asked why she was refused entry. The manager said that she had been caught shoplifting there on the last Sunday in February in 2021, and that she had been banned from there and all the other respondent stores since.  The complainant’s sister was told members of the Gardai were involved in the incident and that she had not paid for items from both the respondent store and another store in the same town. This incident never happened. The complainant’ sister then rang the Garda station and they had no record of any shoplifting incident involving her sister.

The complainant’s sister again rang the respondent store and asked for the name of the arresting Garda but the manager said he was not at liberty to provide this information. The complainant’s sister wrote to the respondent and asked for written evidence of why she was refused entry and they told her to complete a data subject access request form, which she completed and returned on the 24th of January 2022. She received no reply.  The complainant’s sister completed an ES1 form and sent it to management at the respondent’s stores and she received no reply.

The respondents deny any liability or wrongdoing in respect of the incident complained of. On the 18th of November 2021, a store security manager observed a woman, the complainant, walking towards the main door of the store. The security manager believed he recognised the complainant from a previous shoplifting event, and he approached her outside the main door and said to her, ‘sorry, you're not allowed in here today ‘.  The complainant without further protest or inquiry, turned around and walked back the way she'd come. The complainant’s own description of the events corroborate this account. At no time, does the complainant offer any explanation as to how this refusal of entry amounted to discrimination on the grounds of disability.  Indeed, in the claimants own words,  she was not allowed to enter the shop and was not given a reason at the time. As such, it is quite difficult to refute a claim of discrimination, where no tangible details of such discrimination are provided that can be countered. It is clear from the accounts of the manager and of the complainant herself that the complaint of discrimination on the basis of disability is completely unfounded.

The complainant offers no explanation whatsoever as to why the she was refused admission to the store only that she was. Accordingly, there is nothing to suggest that the refusal of entry had anything to do with discrimination against the claimant. This was a case of mistaken identity and have nothing to do with the disability of the complainant.

Legal background.

Section 2 of the Equal Status Act, 2000 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)(g) lists disability as one such ground.

Section 4 of the Equal Status Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide as follows:

“For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”

Substantive Case

Evidence was given at the hearing by the complainant’s sister in relation to the intellectual disability of the complainant.  I accept that she is covered by the Act on the grounds of disability.  Evidence was also given by the complainant’s sister in relation to her understanding from the complainant of what occurred on the day in question.  This account was supported by the evidence of the Store Security Manager.  While there were some differences in the evidence given by the complainant’s sister and that of the Store Manager in relation to subsequent events  In particular, I accept the evidence of the complainant’s sister that she was informed that the Gardai had been notified about the incident which was clearly not the case.   

The complainant was clearly denied the service of the respondent. I accept fully that the refusal to allow the complaint entry to the store was based on mistaken identity.  I note that the respondent’s assertion in this regard was not communicated to the complainant until just before the hearing and that no apology was ever given to the complainant.

In evidence the Security Manager stated that he relied on the appearance of the complainant in reaching the conclusion that she was the person previously identified as a shoplifter.  However, he also confirmed that he was aware of the name of the actual shoplifter and that he did not ask the complainant her name.  Had he done so the matter could have been resolved immediately without the distress caused to the complainant.  Due to her disability the complainant was unable to challenge his assumption on the day.  I therefore conclude that the complainant was denied service on the grounds of her disability and was discriminated against and I award the complainant redress in the amount of €15,000.00 which I consider to be appropriate in the circumstances.

I order the respondent to pay the complainant €15,000 in compensation.

Equal Status.  Denied service.  Disability grounds