ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049395

Parties:

Complaint:

Date of Adjudication Hearing:  11/07/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 21 of the Equal Status Act 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The name of the Respondent was amended on request of the Respondent’s representative.

In accordance with Section 41 (13) and (14) of the Workplace Relations Act 2015, as this case involves a minor, I decided to conduct the hearing otherwise than in public and to anonymise the decision.

Background:

This complaint, taken on behalf of a Minor by his father, is that the Retail Outlet discriminated against the Complainant on the grounds of age and membership of the travelling community.                  

Summary of Complainant’s Case:

The complaint was brought on behalf of a minor and his father presented the case.

He gave sworn evidence summarized as follows:

His son entered the premises of the retail outlet at 7.05pm on 23/11/2023 to purchase a soft drink and the father waited outside in his parked car.  The son came back from the shop and was upset as he was told to leave the store.  When father and son entered the store, they were informed by a woman employee that there was a “law” and a sign outside stating that the shop cannot serve any child under 14 without an adult present.  On his way out, the father did see a sign up high on the wall stating “for health & safety reasons all under 14s must be accompanied by an adult after 6pm in this store.” 

The son was upset and embarrassed.  The father put a picture of the sign on Facebook and received a lot of comments about it. His sister told him that her children had been refused service and she knew many others were not served because they are members of the travelling community.  

The father submitted receipts which indicated that on 2 occasions following the 23/11/2023 incident, two minors, not members of the travelling community were served on 25/11/2023 at 6.51pm and 27/11/2023 at 7.30pm.  These receipts were obtained from friends of the son, two young people from the African and Polish community who it is contended were served in the shop without issue and without an accompanying adult.

The father outlined the upset and distress caused to his son because of the discrimination suffered.

Summary of Respondent’s Case:

The Complaint relates to a claim that the Complainant was discriminated against on the grounds of Age and Membership of the Travelling Community.

The Respondent operates a supermarket with a specific policy in place in relation to unaccompanied minors in the store and it is the Respondent’s case that this store policy is applied to all customers equally.

PRELIMINARY ISSUES

Discrimination on the Grounds of Age

Section 3 (3) of the Equal Status Act, 2000, states that “Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that other person's age, shall not be regarded as discrimination on the age ground.”

The Complainant is a Minor who has not yet attained the age of 18 years and therefore the provisions of the Act do not apply to him on this ground. We therefore request that this element of the complaint is dismissed due to fact that the Commission does not have jurisdiction to hear this claim.

The Respondent notes the decision of the Adjudication Officer in ADJ-00048786 A Minor V Sport Direct in support of this preliminary issue.

Respondent’s Policy

Since early 2020, the store has had a policy in place whereby all under 14s must be accompanied by an adult after 6pm. There is a sign at the entrance of the store confirming this and stating that this policy is in place for Health & Safety Reasons.

The Respondent introduced this policy following an incident in the store whereby an elderly customer suffered a serious injury when two unaccompanied minors were running in the aisles. After this incident, the store decided to ensure that anyone under the age of 14 had to be accompanied by an adult in the store after 6pm.

When a minor who appears to be under 14 enters the store after 6pm, the Respondent’s standard practice is to have a supervisor or manager approach them, explain the policy and ask them to come back in with an adult.

Respondent’s factual account of the case

On the day in question, the Complainant entered the shop after 6pm. A supervisor approached the Complainant and asked him if there was an adult with him and explained that he would have to come back in with an adult to complete his purchase.

As correctly stated in the claim form, once the Complainant came back into the store with an adult (his father), he was able to complete his purchase.

LEGISLATION:

Section 3(2)(i) of the Equal Status Act, 2000, lists the “Traveller Community Ground” as one such discriminatory ground and states that discrimination occurs when one person is treated less favourably by virtue of the fact that that one is a member of the Traveller community and the other is not.

Section 38A(1) of the Act of 2000 provides that “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 facts of the case presented clearly demonstrate that the store policy applies to all customers under the age of 14. The Respondent will provide oral evidence as to the application of this policy and will confirm that any customer entering the store after 6pm, who appears to be under the age of 14, will be asked to leave the store and return with an adult. The Complainant has not established any facts where it may be presumed that prohibited conduct has occurred.

The facts of the case also demonstrate that the store policy was adhered to in this instance as the Complainant completed his purchase when he returned to the store with an adult. The Complainant was treated no differently to any other unaccompanied minor in the store after 6pm.

RELEVANT CASE LAW:

In ADJ-00045426 and ADJ-00045428, Martin Casey and Natalie  Quilligan and Texas Steakout Limited Texas Steakout, the Adjudication Officer noted that where the Respondent’s practice was applied consistently to all customers, no discrimination had occurred. In this case, the Complainant’s booking was cancelled due to the premises closing early on Christmas Eve. An error in the booking system meant that some reservations had been made for times after the premises was due to close. The Respondent in this case contacted and notified all customers with reservations for this period that they would have to be cancelled. This is similar to the instant case, where a practice or policy was applied to consistently to all.

In ADJ-00047351, James Casey and Killarney Oaks Limited, the Adjudication Officer found that no discrimination had occurred when a customer was not accommodated with a table in the hotel restaurant. Similar to ADJ-00045426 and ADJ-00045428, the Respondent in this case had reserved the hotel restaurant for private groups (a wedding and a tour group). The Complainant in this case had a drink in the lobby while waiting to be accommodated in the restaurant, but left when he believed that he was not going to be accommodated. The Adjudicator noted in her decision that “From these facts, it is apparent that the hotel did not refuse to provide a service to the complainant and his family, because they were served drinks in the hotel lobby. In the instant case, the Respondent did not refuse to provide a service to the Complainant. The Complainant completed his purchase when his father was present with him, which is the Store policy for Minors after 6pm.

SUMMARY:  

• The Respondent has a clear policy in relation to unaccompanied minors in the store after 6pm.
• This policy is applied to all minors who enter the store unaccompanied and was applied to the Complainant in the same manner on the day in question.
• When the Complainant re-entered the store with an adult, he was permitted to complete his purchase.
• This demonstrates that the Complainant’s membership of the Travelling Community bore no relevance whatsoever in the Respondent’s request to have him accompanied by an adult.
• The Complainant is regularly in the store with members of his family and his father has always been a valued customer of the store.

The Store Owner gave sworn evidence. He stated that the policy of not serving under 14s was introduced  in January 2020, and an elderly man sustained life changing injuries due to some teenagers running down the aisles of the shop.  He stated that the cut off time of 6pm was due to the fact that schoolchildren might come in after school.  On cross examination, he agreed he did not record incidents.  He could not confirm if the youths in the incident with the elderly man were travellers. 

The Manager on duty on the evening gave sworn evidence.  She stated that she was employed for 21 years with the shop.  Her current role was Checkout Supervisor.  She confirmed that she had to refuse a few children in the past when they were unaccompanied.  She did not use the phrase “it’s the law”.  She said that she politely asked the Complainant to have an adult accompany him and that he was not distressed.

Findings and Conclusions:

The Father of an 11-year-old boy, on his behalf submitted this complaint of discrimination on grounds of age and membership of the travelling community.

The relevant subsections of Section 3 of the Act provides:

3.—(1) For the purposes of this Act, discrimination shall be taken to occur where—

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated…

2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(f) subject to subsection (3), that they are of different ages (the “age ground”)…

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Section 3 (3) provides:

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

The complaint of discrimination on age grounds is not covered by the Act and is not well founded.  

I have considered the complaint that the Complainant was treated less favourably than another person was treated on the ground that he is a member of the travelling community.

Section 38A(1) of the Act of 2000 provides 

“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 onus therefore in the first place lies with the Complainant to establish facts from which it may be presumed that prohibited conduct has occurred.  In this case, the Complainant was refused service initially on the grounds that he did not have an adult accompanying him.  This is the fact established and I find the Complainant has a prima facie case.

The onus then shifts to the Respondent to prove that no discrimination took place.  I note the respondent’s evidence that they have a uniform policy that minors under 14 will not be served after 6pm in the shop, unless accompanied by an adult.  No evidence was provided to demonstrate a consistent application of the policy.  No records were provided to support the Respondent’s claim that no discrimination took place in relation to a number of individuals who were refused service under the policy.       

I note the production of receipts submitted by the Complainant’s father which support his argument that minors under 14 were served after the cut-off point on days following the incident.   The Respondent relied on policy for their arguments but failed to rebut the evidence that minors under the age of 14, who were not members of the Travelling Community were served after the cut-off point on the days in question. 

On this basis, and because the Respondent has not discharged the burden of proof, I find that the Respondent did discriminate against the Complainant on the ground of membership of the travelling community.

In accordance with Section 27 (1) (a) of the Act, I make an order for compensation in the sum of €5,000 for the effects of discrimination and in accordance with Section 27 (1) (b), I make an order that the Respondent takes a course of action in the form of taking measures to ensure their policy is implemented in a non-discriminatory manner.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

As complaints of discrimination on age grounds does not apply to a person who has not attained the age of 18, the complaint of discrimination on age ground is not well founded.

I have decided that the Respondent did discriminate against the Complainant on the ground of membership of the travelling community and in accordance with Section 27 (1) (a) of the Act, I make an order for compensation in the sum of €5,000 for the effects of discrimination.  In accordance with Section 27 (1) (b), I make an order that the Respondent takes a course of action in the form of taking measures to ensure their policy is implemented in a non-discriminatory manner.

Dated:   03-09-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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