Circuit Court: €4,000 awarded to ethnic minority woman after Dunnes Stores refused to allow her to purchase food

About this case:

• Citation:
  [2023] IECC 4
• Judgment:
  External link
• Court:
  Circuit Court
• Judge:
  Judge John O'Connor

Delivering judgment in the case, His Honour Judge John O’Connor held that the women were treated less favourably that other shoppers contrary to the Equal Status Act 2000. The court noted that the security guard had relied entirely on his memory and did not keep a record of previous alleged incidents.

The court also commented that an empathetic approach needed to be taken when employees were assessing discrimination, stating there were challenges faced by certain communities which may not be apparent without specific training.

Background

The two appellants were members of an ethnic minority. The first appellant (CT) was the aunt of the second appellant (FE), who was a teenager. In November 2019, the appellants entered a Dunnes Stores shop in order to purchase some food. They were wearing traditional dress which associated them with their ethnic grouping.

After collecting the items, the women went to pay at the till. However, CT was prevented from paying for the items by a security guard. It was alleged that the woman had previously been barred from the shop for begging. Specifically, it was said that she had approached shoppers and asked them to buy food for her.

The security guard’s evidence was that he asked CT to leave the shop. The gardaí were also called. In relation to FE, it was claimed that the security guard had no interaction with her. However, FE stated that she felt she could not continue with the purchase. CT outlined how other people saw the incident and that she was embarrassed and upset.

A complaint was made by the women to the Workplace Relations Commission (WRC). Following a hearing, an adjudication officer determined that the women were not unfairly discriminated against by Dunnes on the grounds of race or ethnicity.

It was decided that CT had not been served because she had been barred from the store rather than any discriminatory reason. Further, it was found that FE was not denied access to purchase good. It was said that the overall evidence of the women was inconsistent and incoherent.

In appealing the decision to the Circuit Court, the appellants argued that they had established a prima facie case that they had been discriminated against and that, pursuant to the test in the Equal Status Act, the onus shifted onto Dunnes to show there was no discrimination (see Donnelly v. The Minister for Social Protection [2022] IESC 31).

In particular, the appellants relied on the following factors to prove their case. First they were clearly identifiable as members of the minority group and there was clear evidence of less favourable treatment. In arguing that Dunnes had failed to rebut the prima facie case, it was noted that the security guards kept no written records of security issues and there was no formal system in place for barring individuals.

Critically, the appellants had also issued a data access request seeking all documents relating to the women. However, the only documents which were returned related to entirely different women from the same ethnic grouping. It was said that it could be reasonably inferred that Dunnes was unable to distinguish the appellants from the women in the incident report forms. The only shared characteristics of the women were that they were from the same ethnic background.

Circuit Court

Judge O’Connor outlined the submissions of the respective parties. It was noted that Dunnes relied on the previous barring of CT for begging, claiming that this did not amount to discrimination. Further, it was said the clear evidence was that FE was not asked to leave the store.

The court also noted the security guard’s evidence that he was fully trained in equality issues. Additionally, the court considered Dunnes’ submission that there were inconsistencies in the appellants’ account of the incident.

The court held that the security guard genuinely felt that he was doing his job to the best of his ability. However, he made an assumption from his own subjective point of view that CT had been barred for begging. This assumption was questionable, the court said, in light of the failure to properly record previous incidents.

In particular, the court considered the “mix-up” in the discovery documentation which disclosed different people and different incidents. It was said that there was “a failure to recognise discrimination is a frequent occurrence in society”, and that therefore discrimination had to be objectively assessed.

The court also provided general comments which were directed at avoiding similar incidents in future. It was said, inter alia, that security officers should avoid making assumptions based on instinct or memory and that a record of previous incidents should be kept.

It was said that, in order to assess discrimination in the moment, “it is useful to combine a degree of empathy with objectivity”. The court explained that there should be an awareness of the challenges faced by certain people and this could be addressed by adequate training and employer policy.

Finally, it was said that an internal complaint handling mechanism would be beneficial and that an apology could often go a long way to mitigate damage.

In reaching a decision, the court held that CT was treated differently from other shoppers on the balance of probabilities. It was held that the appellants were genuinely upset and there actions were consistent with people who were honestly aggrieved at their treatment.

The court also accepted that FE was a teenager at the time and felt that she could not continue with her purchase.

Conclusion

The court awarded €4,000 to CT and €2,000 to FE.

CT v. Dunnes Stores Unlimited Company [2023] IECC 4