Complainant

Respondent

Parties

Andrew A  Ennis

Lidl

Act

Complaint Reference No.

Date of Receipt

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

CA-00051516-001

28/06/2022

The complainant who has a disability attended at the shopping centre in which the named respondent is a tenant in early April 2022.

On returning to his car there was a car park attendant who appeared to be threatening to clamp the complainant, saying that he was parked unlawfully in a reserved parking space for those with a disability.

He describes the less favourable treatment he received as the intimidation and conduct of the car parking attendant as there was no time limit on in relation to the car parking space and he had an entitlement to park there.

In response to a question, he confirmed that he had not served Form ES 1 on the respondent.

The complainant has made a claim of discrimination on grounds of disability, equal status, and equality pursuant to the Equal Status Act 2000 (“the Act”) relating to the provision of goods and/or services.

To succeed in his claim of discrimination on the grounds of disability, the complainant must make out a prima facie case that, in accordance with section 3(2) of the Act, he was treated less favourably than another person has been treated in a comparable situation on the basis that:

a.     that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”).

The respondent confirms that no Lidl employee had any involvement with the alleged discrimination reported by the Respondent.

It is a supermarket chain which provide goods to the public. At the time of the incident complained of, the complainant describes an exchange between himself and an external third-party clamping firm, RFC Security Limited.

In this instance, the respondent did not direct or instruct that company to approach the complainant or enquire about his use of a disabled parking space in its store.

The complainant has not formally completed a WRC Complaint Form.

There are limited details or specifics of the actual complaint/incident provided by the complainant to the respondent and the WRC. It would appear from the WRC letter of the 28th November 2022 enclosing three letters dated  May 20th, 2022, April 26th, 2022, September 27th, 2022, that these only outline a rough approximation of a complaint.

From the documentation provided by the complainant, the alleged discrimination appears to relate to the following contention:

“I believe that my complaint comes under the heading; harassment, as well as discrimination/victimisation; failure to provide reasonable accommodation for a person with a disability without being intimated (sic Intimidated)”

While the complainant appears to indicate he is discriminated on the grounds of disability as referenced in his letters, he has failed to provide details or evidence of discrimination on the grounds of disability. The complainant only makes references in his letter of September  27th, 2022 that he is being “called for a hip operation”.

The complainant does not appear to have ever sent an ES1 Form to the respondent.

Once its legal team had actual notice of the complainant’s complaint (in lieu of an ES1 Form or a formal complaint form) in the WRC correspondence of 28th November 2022, the matter was investigated.

Following this investigation, it was established that the complainant at no stage reported this alleged discrimination in-store. None of the respondent’s employees were aware of the incident on the day in question nor appear to have any interaction with the complainant in the carpark during the alleged discriminatory incident.

Therefore, the respondent respectfully confirms that there is no further information it can provide relating to the alleged discrimination. This incident involved only two parties, the complainant, and an external third-party clamping company, namely RFC Security Limited.

A letter was sent by the respondent to the WRC on 13th July 2022 seeking confirmation whether or not an adjudication file was open pertaining to this alleged incident and is at a loss to understand why they have been added to this complaint for discrimination when no Lidl employee was involved in the alleged incident.

Notwithstanding the complete lack of involvement in this alleged incident, it should be noted that the complainant has incorrectly constituted these proceedings by issuing solely against Lidl, when the alleged offence of discrimination against the complainant relates to a third-party external clamping company, RFC Security Limited.

The complainant has failed to include RFC Security Limited in the WRC proceedings and in this instance, the complainant has named the incorrect respondent in these proceedings. The complainant was notified of the correct details of the correct respondent, namely RFC Security Limited by our Customer Service and their letter to him.

The respondent did not direct the external third-party clamping company to approach the complainant as it does not have full autonomy of this third-party security agent nor all of its interactions with customers around the Lidl car park. It would certainly not have directed the third-party clamping agent to act in any manner that would be construed as being discriminatory.

The burden of proof in relation to the complainant’s claims falls on him. The respondent has not had sight of the complainant’s ES1, Complaint Form nor Submissions and therefore, provides this submission, without prejudice to the burden that falls on the complainant and reserves its position to make such further Submission and/or to adduce such further evidence as may be required to address the complaint of the complainant.

As indicated already, at no stage was the alleged discriminatory behaviour reported in store nor to a Lidl Employee. In that instance, the Respondent has limited details relating to the complainant’s attendance at our store nor their interactions with the third-party clamping agent.

The only knowledge or specifics of the alleged discriminatory incident that the Respondent has is a note from our internal customer care team created on the 9th April 2022 which refers to the following.

“A letter from the customer (to) advised as walking from the store a clamping agent was going to clamp the customer’s car. The customer perplexed by this as had a disabled badge displayed. “

Due to our internal retention policies, the letter received by the Customer Care team was only retained for a period of thirty days as no legal claim arose on foot of  the incident within the initial thirty days of receiving the letter. All other entries were anonymised relating to the complainant.

The respondent at the time of the alleged incident was unaware and not involved with any discussions or actions by the third-party clamping agent and the complainant. The Respondent cannot comment on what occurred during the interaction between the complainant and the third-party security agent, but  strenuously denies that the complainant were treated in a manner that was in any way different to our usual practices in providing reasonable accommodation for a person with a disability.

The Respondent is also advised by the external third-party clamping company that it has no record of the incident, nor of any vehicles being clamped in the Lidl Trim store for the entire month of April 2022.

The respondent understands that the complainant is dissatisfied with his experience in the Trim Lidl Store carpark following an interaction with a third-party clamping agent at the store in or around early April 2022 but absolutely reject that it acted in a manner that was discriminatory, harassing or failing to provide reasonable accommodation for a person with a disability.

The complainant’s description of the experience which gave rise to this complaint did not make for easy listening.  He returned to his car in which his wife had been waiting to find himself confronted with a car park attendant.

He described that actions of the attendant in the carpark as being threatening not just in the narrow sense of what he was intimating he might do, i.e., immobilise the vehicle, but did so in an actually threatening manner.

Unfortunately, he has failed to make out a case for a number of procedural and other reasons.

The Equal Status Act places certain obligations on a would-be complainant. In relation to notification Section 21 (2) of the Equal Status Acts states:

Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.”

Subsection (3)(ii) allows that this period may be extended to four months if there is reasonable cause.

The complainant did not comply with this notice requirement. It will be noted from the text of the statute that this is a mandatory requirement. (Indeed, the complainant did not submit his complaint to the WRC on the required complaint form).

One reason for this notification requirement may be that, unlike in employment cases, the complainant may not be known to a respondent, and they may even be unaware of an alleged breach.

Section 21(3) does provide for the disapplication of this requirement ‘exceptionally’ and where [the Director of the WRC, or as delegated to the Adjudication Officer] is satisfied ‘that it is fair and reasonable in the particular circumstance of the case to do so.

The responded says it only became aware of the complaint when it was contacted by the WRC. I can therefore find no exceptional circumstances to do so in this case.

But this is not the only obstacle faced by the respondent. He has not identified the correct respondent in the complaint, despite being eventually advised (initially incorrectly) who the correct respondent might be.

The named respondent in this case has no role in the management of the carpark and none of its employees were identified as having been involved in the incident. It is not the correct respondent.

Finally, the complainant has not actually identified a breach of the Act, beyond the alleged actions of the car park attendant which do not appear to have represented discriminatory treatment in themselves, in the sense required by the Act, although they may have been very unpleasant for the complainant and his wife.

Accordingly, for all of these reasons the complainant has not made out a prima facie case and his complaint is not upheld.

For the reasons set out above I do not uphold Complaint CA-00051516-001

Equal Status, ES1, incorrect respondent.