Complainant

Respondent

Parties

Brigid  Cash

C.P. Roche & Company Limited t/a Roches Allcare Pharmacy

Representatives

Represented by Cooke Kinsella Solicitors

Represented by Jack Fenton BL, instructed by Hayes McGrath Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00048787-001

24/02/2022

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

CA-00048788-001

24/02/2022

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

CA-00048789-001

24/02/2022

The complainant states that she along with her daughter attended the respondent pharmacy on the morning of 10 November 2021. The complainant states that when they exited the store and were leaving in their car, they were followed by two store employees one of which informed the complainant in an accusatory tone that “I have you on camera” in an area within earshot of persons present on main street.

The complainant states that she and her daughter were extremely upset, embarrassed and distressed as a result of the incident which she asserts was untrue and totally without foundation. The complainant states that the matter was very poorly handled by the respondent. The complainant alleges that she was discriminated against by the respondent because she is a member of the Traveller community.

The respondent rejects the complainant’s claim in its entirety. The respondent states that its employee, Ms D who was not that long employed with the company was on the till at the time formed the opinion that the complainant may have taken something without paying. The respondent asserts that Ms. D and her supervisor Ms. C then followed outside where they witnessed the complainant and another female in a vehicle. The respondent states that the supervisor made a hand gesture indicating a camera which caused the complainant to stop the vehicle whereupon the supervisor, Ms C then recognised the complainant and her daughter as frequent customers at the respondent premises. The respondent’s supervisor denies that she stated in an accusatory tone “I have you on camera” in an area within earshot of people present on the main street.

The respondent states Ms. C asked the complainant and her daughter to come back into the pharmacy. The respondent states that the supervisor apologised to the complainant for the inconvenience and advised that there had been a mistake. The respondent states that the incident occurred as a result of the opinion formed by its employee Ms. D that the complainant may have taken something from the store without paying and not as result of any prohibited conduct as defined by the Act. The respondent submits that its employee Ms D was not, at any time, aware of the fact that the complainant was a member of the Traveller Community.

The respondent states that the supervisor, to whom the complainant was known, did not witness the complainant present at the respondent’s premises and acted based solely on the representations made to her by Ms. D. The respondent states that at no point did the protected characteristic factor into the treatment of which the complainant now makes the within claim.      

The issue for decision by me is, whether or not the respondent discriminated against the complainant on the Traveller community ground in terms of 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.

I have carefully examined all of the evidence heard and have viewed the CCTV footage in relation to the incident.

I note that Ms. C (Supervisor) was in the back of the pharmacy at the dispensary unit preparing prescriptions for customers while Ms. D was on the till. I note that Ms. D was not that long working with the respondent. I note that Ms. D undertook duties 1 day per week at the pharmacy on work experience. The incident happened during the Covid pandemic and from the CCTV footage it is evident that the complainant and her daughter were wearing face masks on the day in question.  The respondent stated that there had been a number of thefts and incidents of shoplifting at that juncture and the respondent felt they had enough and wanted to deal with such incidents. Ms. D stated that she thought she saw the complainant take something without paying. She went to the back dispensary and told Ms. C about the incident.  (It transpires from reviewing the video footage that the complainant and her daughter used a weighing scales in the store and that the complainant put a copy of the print out from same into her pocket).

Both Ms. C and Ms. D followed the complainant out of the shop and saw her in a vehicle. Ms. C states that she made a hand gesture indicating a camera which caused the complainant to stop the car. Ms. C then recognised the complainant and her daughter as frequent customers at the pharmacy. Ms. C refutes the complainant’s assertion that she said “I have you on camera” in an area within earshot of persons present on the main street.

Ms. C asked the complainant and her daughter to come back into the pharmacy and apologised to the complainant for the inconvenience caused and explained that there had been a misunderstanding.

Based on the oral evidence heard, I found the respondent staff who attended the hearing to give testimony polite and respectful and I find their testimony to be cogent and compelling.

In all of the circumstances in the within complaint, I find Ms. D’s testimony credible where she states she was not aware that the complainant and her daughter were members of the Traveller community.  I am satisfied that the complainant was known to Ms C and Ms. C was aware that the complainant  was a member of the Traveller community. I note the testimony of Ms. C that when the complainant rolled down the window of the car, Ms. C said to Ms. D she recognised the customer and that there must be a misunderstanding and apologised to the complainant.  

I am satisfied based on the review of the CCTV footage that Ms. C was in the back dispensary and did not witness the complainant present at the pharmacy.

Based on all of the evidence heard, I find that the treatment of the complainant was not as a result of any prohibited conduct defined by the Act.

Having carefully examined all the evidence adduced in the within case, I find that the complainant has failed to provide evidence in support of her assertion that she was treated less favourably by the respondent on the Traveller community ground. In such circumstances I am satisfied that the complainant has failed to establish a prima facie case of discrimination and accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds that she was a member of the Traveller community.

I find that the complainant was not discriminated against by the respondent on the Traveller community ground in terms of section 3 of the Acts. I am satisfied that the respondent did not engage in the prohibited conduct as alleged by the complainant and therefore her case fails.

Equal Status Acts, Traveller ground