Complainant

Respondent

Parties

Jennifer McInerney

Tesco Ireland Limited

Representatives

David McInerney 

Michael Kinsley BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00053105-001

03/10/2022

On June 3rd 2022, the complainant had finished her fifth year exams and she went to Tesco Express in Donnybrook with her sister, who is 16.  The complainant was wearing her school uniform.  She asked to purchase three €2.00 National Lottery scratch cards, and, although she produced her driver’s licence to prove that she was over 18, she was refused the scratch cards.  She was informed by a manager in the store that the company’s policy was not to sell National Lottery scratch cards to a person who is in the company of someone who is under the age of 18.  When she got home, the complainant told her father what had happened and he telephoned the store and spoke to the manager who made the decision to refuse the purchase.  Mr McInerney was informed that it was the policy of the company not to sell scratch cards to a person in the company of someone under the age of 18.  Mr McInerney asked the manager for a copy of the company’s policy on the sale of scratch cards, but the policy wasn’t provided to him.

On June 18th, the complainant sent an ES1 form to the respondent.  On the form, she recounted her experience in the shop and the details of her father’s telephone call with the shop manager when she got home.  She indicated her intention to seek redress under the Equal Status Act 2000.

On July 14th, a legal executive in the respondent’s company, Ms Aideen Smyth, wrote to the complainant and asked for time to investigate what occurred on June 3rd.

On August 16th, the respondent’s customer service manager, Ms Orla Dooley wrote to the complainant.  In her letter, Ms Dooley apologised to the complainant, and explained that the company has strict policies and procedures to ensure that they are compliant with legal obligations when selling lottery tickets and scratch cards.  She explained that failure to comply with the policies could result in an underage sale, which would have serious consequences.  As a goodwill gesture, Ms Dooley enclosed a shopping voucher for €50.00.  On September 5th, the complainant sent an email to Ms Dooley informing her that she would not be accepting the shopping voucher.

On October 3rd, the complainant submitted this complaint to the WRC.

Evidence of the Complainant

In her evidence, the complainant said that she had just finished her summer exams in school and she went to Tesco express in Donnybrook to buy three National Lottery scratch cards.  She wanted one for herself and one each for her parents.  She was accompanied by her younger sister.  The complainant said that she was wearing her school uniform and the shop assistant asked her for identification.  The complainant presented her driver’s licence to prove that she was 18.  She said that the shop assistant then asked her how old her sister was, and she replied that she was 16.  The complainant said that the shop assistant called a colleague and this shop assistant said that, because the complainant was in her school uniform, he would ask the store manager if the scratch cards could be sold to her.  When manager approached, the salesperson explained that the complainant’s sister was 16.  The manager said that they couldn’t sell the complainant the scratch cards.

The complainant said that while this discussion was taking place, a neighbour and a member of her tennis club was in the store and this person could hear the discussion between the complainant and the shop staff.  The complainant said that she was embarrassed and that she felt guilty and horrible.  She went home and explained to her parents what had happened.

Evidence of the Complainant’s Father, Mr David McInerney

Mr McInerney said that, on the day in question, his daughters arrived home and were very upset.  They said that a person from their tennis club and a neighbour had observed what happened in the shop.  Mr McInerney said that he phoned the store and spoke to the manager.  He said that he was informed that if someone looked under the age of 25 and they had no identification, they wouldn’t be sold lottery tickets or scratch cards.  Mr McInerney said that he gave the manger his email address and asked her to send him a copy of the policy, but he never received it.

Cross-examining of the Complainant

The complainant agreed with Mr Kinsley that, when she went to the shop on June 3rd, she was wearing her school uniform.  Her sister, who was 16, wasn’t wearing her uniform.  She agreed that she told the shop assistant, that she was buying the scratch cards and not her sister.

Mr Kinsley asked the complainant if she was trying to conceal the fact that she had someone who was 16 with her.  He asked her to think about the sequence of events.  She was in her school uniform, and her sister who was with her was 16.  The shop assistant asked her for identification and asked for the age of the younger person.  He asked the complainant if she thought it was reasonable for the shop assistant to be concerned about the age of her sister.  The complainant replied that she had turned 18 that week and it was the first time that she tried to purchase scratch cards.

Mr Kinsley referred to the respondent’s policy on the sale of scratch cards, which was submitted in the respondent’s book of papers and sent to the WRC and to the complainant in October 2023.   He referred to the criminal sanctions that apply to the sale of restricted products to minors.  The complainant accepted that this is the company’s policy.

Mr Kinsley said that it is the policy of the company to refuse a sale of a scratch card, or any restricted product such as cigarettes or alcohol, if there is a risk that the product could end up in the hands of someone who is under 18.   He said that the manager made a decision, which may not have been right, but which was based on what she observed.

The complainant said that she was up front and told the staff that her sister was not 18.

Mr Kinsley suggested that, if her sister hadn’t been with her, she would have been permitted to purchase the scratch cards.  The complainant replied that it was bad judgement by the shop manager.  She said that the male shop assistant who was called over by the first shop assistant told her that he would have to call the manager because she was wearing her school uniform.

Mr Kinsley remarked that, on the ES1 form, the complainant claims that she was refused the sale of the scratch cards because she was with her sister, who was 16.

Mr Kinsley said that the respondent regrets any distress caused to the complainant because of the incident, but that they have legal obligations regarding the sale of scratch cards.  He said that the written policy copper-fastens the legal obligations.  He said that the staff were instructed not to make a sale, and that it was legitimate for them to do so.

The complainant said that her complaint is not about money, but about the distress caused to her because of the incident, when she and her sister were seen by her neighbours in the shop, with the staff refusing to sell her the scratch cards.

Concluding Remarks

The complainant repeated that she told the staff in the store that she was buying the scratch cards for herself.  She said that, if she was going to give a scratch card to her sister, she could have asked her to wait for her outside the shop.

Mr McInerney said that it was disappointing that the respondent did not ask the store manager to give evidence at this hearing.  He submitted that their policy is unfair and based on stereo-typing and misconceptions.  He said that the respondent’s staff assumed that the complainant would act in a certain way.

In a written submission provided in advance of the hearing, Mr Kinsley explained the respondent’s policy on the sale of “restricted” products.  These are products that are not on sale freely and the respondent’s staff must comply with certain legal obligations in respect of their sale.  These products include alcohol, tobacco and gambling or lottery products.

Mr Kinsley said that the facts of what occurred are not in dispute.  The respondent’s staff refused to sell the complainant National Lottery scratch cards when she was in the store in Donnybrook with her sister on June 3rd 2022.  Mr Kinsley said that the respondent’s staff refused to sell the scratch cards to the complainant because she was accompanied by her sister, who was under age and the staff held the reasonable view that the tickets may be for the under age person.  The actions of the staff were in compliance with the respondent’s policy regarding the sale of restricted items and in compliance with their legal obligation to prevent the restricted items being provided to a person under the age of 18.

Mr Kinsley submitted that the respondent regrets any upset or distress experienced by the complainant arising from the events of June 3rd 2022.  The staff were merely adhering to the respondent’s policy regarding the sale of restricted items.  The offer of a voucher for €50 was made as a gesture of goodwill and without any acknowledgement of liability. 

The complainant was not refused service because of her age.  The respondent’s staff had a reasonable belief that the person who accompanied the complainant would have access to restricted items, in this instance, National Lottery scratch cards, and this was the basis on which the sale was refused.  Mr Kinsley submitted that the complainant’s allegation of discrimination is entirely misconceived, because the refusal of the sale was not based on her age, but because of the presence of her younger sister.

Mr Kinsley referred to s.5(1) of the Equal Status Act 2000 (“the Act”), which provides that discrimination does not occur when a service provider is acting in accordance with a statutory mandate, such as the requirement to prevent the sale of restricted products to people under the age of 18.  He submitted that the complainant was refused the sale of the scratch cards because of the reasonable belief of the store manager that her younger sister would have access to them.

Mr Kinsley said that the complainant has not identified a comparator who she alleges was or would have been treated more favourably than her.  He said that, in accordance with s.3(3) of the Act, the respondent is not prohibited from treated people under the age of 18 differently and that it has a duty to do so where restricted items are concerned.

As set out in s.5(1) of the Act, nothing done by the respondent to comply with its statutory duties amounts to discrimination under the Act.  Mr Kinsley submitted that the respondent was acting in compliance with its legal duty to ensure that items legally restricted to customers over the age of 18 would not be provided to those under that age.

Evidence of the Central Compliance Manager, Mr John Byrne

Mr Byrne said that his job is to support the respondent’s stores to ensure that they trade legally.  He is responsible for health and safety, environment, fire safety and restricted sales.  Mr Byrne said that there is an onerous legal obligation on the stores to correctly sell restricted products.  He explained that the store has a “Think 25 Policy,” meaning that, if a customer looks under the age of 25, they are asked for identification.

Mr Byrne described the concept of “proxy sales,” where a person who is over the age of 18 purchases a restricted product such as alcohol, tobacco or scratch cards for a younger person.  He said that the policy is, if the staff member believes that the product will be passed on, the sale will be refused.  Mr Byrne said that he believes that the actions of the staff in Tesco Express in Donnybrook on June 3rd 2022, were consistent with the policy.

Asked about the consequences of not complying with the policy, Mr Byrne explained that the National Lottery carries out test-purchasing of lottery tickets and scratch cards.  If a store is found to be selling National Lottery products to under age customers, their licence to sell the products could be withdrawn.

Cross-examining of Mr Byrne

Mr McInerney asked Mr Byrne what the legal age is for the sale of lottery tickets and scratch cards.  Mr Byrne replied that the legal age is 18.

Mr Byrne said that he didn’t speak to the staff in the store about the incident.

Mr McInerney said that the complainant was aged 18 at the time of the incident and she produced identification.  He asked Mr Byrne why the sale was refused.  Mr Byrne replied that the shop staff must apply a degree of judgement.

Mr McInerney asked Mr Byrne if scratch cards could be refused if someone was over the age of 18 or 20.  Mr Byrne referred to the “Think 25 Policy,” and said that, if someone looks under the age of 25, they are asked for identification.  If they don’t produce identification, even if they are over 18, they could be refused.  Mr Byrne said that a 40-year old customer could be refused if a staff member thought that they were passing a restricted product to a person under 18.

Mr McInerney referred to the policy of the National Lottery to carry out test purchases.  He asked Mr Byrne if he would be concerned if a sale was refused to some aged over 18.  Mr Byrne replied that the policy of the National Lottery is that a store must ask for identification if a person looks under the age of 21.

Mr McInerney asked if a person who looks under age 25 and who has no identification can be refused a sale.  He said that it seems that the policy could be used to discriminate against someone because of their appearance.

Concluding Remarks

Concluding the case for the respondent, Mr Kinsley said that the complainant was refused the sale of the scratch cards because her sister was under age 18.  He said that the manager applied the “proxy sale policy” because she was concerned that the scratch cards would be given to the younger person.  Mr Kinsley submitted that this is provided for at s.3(1)(c) of the Equal Status Act, which provides that a person who is treated less favourable on any of the nine discriminatory grounds, will not be discriminated against if,

“…the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Mr Kinsley referred to s.42(6) of the National Lotteries Act, which provides that,

A person, including the operator, shall not sell or offer for sale by any means a National Lottery ticket to a person under the age of 18 years or invite from such a person an offer to buy a National Lottery ticket.

Mr Kinsley said that the complainant was not treated differently because of her age, but because of the suspicion that a younger person was going to benefit from the tickets.

The Legal Framework

Discrimination is defined at section 3 of the Equal Status Act 2000 as follows:

(1) For the purposes of this Act discrimination shall be taken to occur -

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which -

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person -

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Subsection (2) sets out the discriminatory grounds, one of which, at subsection (2)(f) is; 

(f) that they are of different ages (the “age ground”).

Section 3(3)(a) addresses the treatment of people under the age of 18:

Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person’s age shall not be regarded as discrimination on the age ground.

In accordance with the objectives of the Act, the public has a right to access the services of a shop without being discriminated against on any ground.  Section 5(1) addresses this right:

A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.

In his submission, Mr Kinsley referred to s.14 of the Act, where, under the heading, “Certain measures or activities not prohibited,” there are exceptions to the general prohibition against discrimination at s.5(1):

(1) Nothing in this Act shall be construed as prohibiting -

(a) the taking of any action that is required by or under -

(i) any enactment or order of a court[.]

(The remaining subsections (ii) and (iii) are not relevant to this complaint).

The Burden of Proof

Section 38A of the Act sets out the burden of proof in discrimination complaints:

(1) 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.

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she was discriminated against because of her age.

My task here is to consider the complainant’s case that, because she is a young person, she was treated less favourably than an older person, when the respondent refused to sell her a National Lottery scratch card.  In the first instance, I must decide if, on the basic facts, a presumption of discrimination can be shown.

The Basic Facts

From the evidence of both parties at the hearing of this complaint, the undisputed facts are as follows:

The complainant went to the Tesco Express store in Donnybrook on Friday, June 3rd 2022, wearing her school uniform and accompanied by her sister, who is 16.  The complainant was aged 18 and she said that she wanted to buy three scratch cards, one each for her and her parents.  The complainant produced identification when it was requested, proving that she was 18, but the store manager refused to sell her the scratch cards because she was with her younger sister. 

Mr McInerney’s contention is that the complainant was stereo-typed, meaning that the respondent’s staff assumed that all young people are inclined to behave in a particular way.  I can find no evidence of stereo-typing, but I am satisfied that, if the complainant’s sister had gone to the store with one of her parents, and, if the parent had attempted to purchase the scratch cards, it is unlikely that they would have been refused.  It seems to me that, because the complainant was trying to buy the scratch cards when she was with her younger sister, she may have been treated differently to an older person.  I am satisfied that the complainant has established that there was an inference of discrimination and I must now consider the respondent’s case that discrimination did not occur.

Findings

Section 14(1) of the Equal Status Act provides that a service provider is not prevented from doing something that may be a breach of the Act, if it is to comply with “any enactment or order of a court.”  Section 42(6) of the National Lottery Act 2013 provides that lottery tickets may not be sold to persons under the age of 18. 

While Mr Kinsley referred to the provision at s.3(3)(a) of the Act, that treating a person under the age of 18 differently to another person shall not be regarded as discrimination on the age ground, this is not relevant, because it is the complainant who is claiming that she was discriminated against, and not her younger sister. 

The respondent’s “Think 25 Policy” provides that a customer who is seeking to buy alcohol, cigarettes or lottery products and, who looks under 25, must be asked for identification to show that they are over 18.  While Mr McInerney described this as confusing, I accept that it is a failsafe procedure, so that customers who are under age 18 but, who look older, are not allowed to slip past a sales assistant and be sold a restricted product.

The respondent’s “proxy sale” policy is designed to ensure that a person under the age of 18 cannot be given cigarettes, alcohol or scratch cards by an older person to whom they have been sold legitimately.  This is the basis on which the store manager refused to sell scratch cards to the complainant.  In her evidence, the complainant said that she told the first shop assistant that she dealt with that she was buying the scratch cards for herself and her parents.  It is my view that, faced with two young girls, one of whom was buying three scratch cards, it was reasonable for the store manager to think that the girl purchasing the cards would share them with her sister.

It is clearly set out in the “Think 25 Policy,” that selling a restricted product to an under age person may result in a disciplinary sanction or dismissal for the employee who makes the sale.  The policy is intended to ensure that employees take their legal obligations seriously.  The policy informs employees that test purchases are carried out by the Gardaí and by staff from the National Lottery, who, to test the license-holder’s procedures, arrange to have young people attempt to buy restricted products.  It is interesting to note that, when she tried to buy the scratch cards, the first and second employees were concerned that they may be acting illegally if they sold her the scratch cards, but they didn’t make a decision and, instead, they consulted their manager.  The manager made the decision to refuse the sale.  From this, it is clear to me that the respondent’s staff acted with care and consideration, leaving the final decision to a more senior person.

The complainant had demonstrated that she was legally entitled to purchase the scratch cards and none of the employees that she dealt with suggested otherwise.  The decision not to sell her the products was taken not because she is a young person, but because she was in the company of her sister, who was 16.  While this may have resulted in the complainant being upset, it is my view that it was a reasonable response to a perceived risk and that it was intended to prevent the possibility of an illegal sale.    

The complainant said that, if she had been trying to buy a scratch card for her sister, she would have asked her to wait outside the shop.  She gave her evidence under oath and I accept that it wasn’t her intention to give a scratch card to her younger sister.  The important issue however, is not the motivation of the complainant, but the decision of the respondent’s staff to act on a reasonable assumption that a girl buying scratch cards in the company of a younger girl may have been buying them for them both. 

Conclusion

While the complainant was entitled to purchase the scratch cards and she was refused, it is my view that the respondent’s staff acted reasonably and in accordance with an important public policy statute on the protection of young people from the risk of gambling.  This legal requirement places an onerous responsibility on shop assistants and particularly on a store manager to prevent illegal purchases.  It is my view that the first two members of staff acted reasonably by not making a decision and by consulting a more senior person.  I find that the manager also acted reasonably by considering the risk that the scratch cards could be for both girls and not just for the girl who was 18.  I find therefore, that the manager acted in accordance with the law that prohibits the sale of lottery products to anyone under the age of 18 and in accordance with the respondent’s procedure on proxy sales.  If the complainant was discriminated against, I find that this was permitted by the requirement of law. 

For the reasons I have set out above, I decide that this complaint is not well founded.

Discrimination, age ground, discretion to refuse to sell a product