Complainant

Respondent

Anonymised Parties

A Minor

Sport Direct

Representatives

Ursula Cullen solr.,   Miley and Miley Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059960-001

08/11/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was, as far as was practicable, conducted in accordance with the rules of natural justice so as to better demonstrate transparency in the administration of Justice. 

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 8th of November 2023.

The hearing is conducted in Public unless the Adjudication Officer decides, following an application from a party to the proceedings, that due to the existence of special circumstances, the proceedings should be conducted in private. As it happens no member of the public sought access to this online hearing.

The Complainant herein is a Minor aged 14 years and, in these circumstances, an anonymised version of the decision will be uploaded onto the WRC website where I have decided that due to the existence of special circumstances, namely the tender years of the Complainant, that the decision should be anonymised insofar as the Minor’s name shall not be included.

Unusually, the Complainant was not present at the hearing as she was at school. The Complainant’s Mother and next friend was present to represent the Complainant’s interests and make her case. No objection was raised in this regard, and I allowed the matter proceed in the absence of the Complainant Minor as the mother and next friend had issued the complaint and was familiar with the circumstances and the impact on her daughter.

In the circumstances, the Mother and Next Friend spoke for her daughter. The Mother and Next Friend relied on the narrative already set out in the complaint form together with some printed conversations she had had with the Respondent Customer Services Department and which she had captured at the time of the incident complained of. No objection was raised to the introduction of these documents.

The  Mother and Next Friend asserts that her 13 year old daughter was discriminated against on the grounds of her age when she was asked to leave a retail premises into which she had gone for the express purpose of buying some GAA boots. The Mother and Next Friend asserts that her daughter was asked to leave by a security guard and that the interaction was wholly unsatisfactory as her daughter was most upset by the incident. The Mother and Next Friend has also alleged victimisation on the part of her daughter.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent retail unit was further represented by both the Store Manager and the Security Guard in question. The Respondent legal advisor provided me with a written submissions dated the 3rd of April 2024. I have additionally heard from the witnesses for the Respondent aforementioned. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All the Respondent’s evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Mother and Next friend where she sought clarification.

The Respondent rejects that there has been any Discrimination or Victimisation and has further challenged my jurisdiction where the  Equal Status Act, 2000 specifically sets out (under the Discrimination heading) at Section 3:-

Section 3 (3) (a) 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.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered everything that has been put to me in legal argument as well as listening to what the parties had to say in the course of evidence.

On the one hand I am presented with a Mother who is acting in what she perceives to be the best interests of her daughter. I fully accept that her daughter went into the Respondent sports emporium for the express purpose of buying boots for her GAA matches. I accept that the Minor Complainant had her 50 euro note with her and was not entering the premises for other nefarious purposes.

It seems that the Complainant and her young companion drew the attention of the Security Guard who asked them to leave as they were underage and were not accompanied by an adult. This I am told is store policy. My attention was directed to how this policy is advertised. There is, indeed, a very small sign to that effect on display in the window – lost perhaps- amongst a number of other displays. To be fair, the sign has an image of an adult and a small child with a slash through it saying “children must be supervised at all times”. There is no upper or lower age limit referenced either way. At best, the depiction is of a small child.

By way of an aside, I have to say that I find it hard to believe that there is a strictly implemented policy that allows for older children being asked to leave just by reason of their being under 18. It’s just simply not consistent with the target market that shops such as Sports Direct aim their wares and merchandise at. In fact, I daresay that there is many a household that would confirm that the only place their teenage children shop, are sports shop such as that run by the Respondents. I cannot believe that staff regularly refuse sales on the grounds of customer youth.

In any event, this process of ejection does appear to be what happened on the day in question. The Minor Complainant returned home to her Mother, and I accept that the Mother and Next friend perceived her daughter to be distressed and humiliated and upset at what had happened. I accept the Mother and Next Friend’s evidence that this incident has negatively impacted her daughter who had felt she had been identified as doing something wrong, had been followed and had been asked to leave the store. I understand that the Minor and Next Friend has experienced anxiety episodes as a direct result.

Before bringing a complaint before the WRC I note that the mother and Next Friend engaged with a Customer Service chat which categorically stated that there was no age restriction or policy in place. I have since been told that his applies in the UK outlets and not the Irish ones.

In the course of the hearing today it has been made clear to the Complainant’s Mother and Next friend that her daughter is precluded from establishing discrimination and seeking redress by reason of Section 3(3)(a) which reads :

Section 3 (3) (a) 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.

It is also the case that the claim for victimisation is misconstrued. Victimisation (in the context of the equality acts) amounts to the Penalising of a person for making a complaint of discrimination. There is no evidence to suggest that the Respondent herein has somehow penalised the Complainant Minor for bringing this complaint to the attention of the WRC.

I cannot find in favour of the Minor Complainant herein. Even if I found she had proven that she was treated less favourably than a comparator over the age of 18 I am excluded from making a finding of discrimination. The law does not allow for that.

I do commend the Mother and Next Friend for trying to right a perceived wrong. The Respondent stated policy is not well advertised and flies in the face of what one would expect. The Respondent did not seem to see the potential damage an incident such as this might have on an otherwise happy go lucky little girl. No apology was forthcoming and the Respondent in fact doubled down (through its witnesses) on its position - as they were entitled to do.

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

CA-00059960-001 –  The complaint fails by reason of the Complainant’s young age. I do not have jurisdiction.