There has been a considerable amount of case law in recent years under the Equal Status Acts 2000 – 2021 (the Acts).  The Acts prohibit discrimination on the nine protected grounds in the provision of goods and services, the provision of accommodation, and in access to education.  This prohibition applies to the provision of services that are generally available to the public, whether provided by the state or the private sector.

Many businesses, particularly in the retail and hospitality sector, engage the services of third-party security agencies to provide a physical security presence in their premises. Security guards are often employed and paid by the security agency and are assigned by the agency to work from different client premises.

Who is legally responsible?

In the context of the provision of goods and services, a question that frequently arises is “Who is legally responsible for the discriminatory acts of a third party, such as security services, where a complaint is made to the Workplace Relations Commission (WRC) under the Equal Status Acts?”

Legislation and case law are unequivocal on this point that the end-user (the company that engages the services of the third-party security agency) is the correct respondent to such claims regardless of where blame for the alleged discriminatory actions is attributed.

What is Vicarious Liability?

Section 42 of the Acts (Vicarious liability), provides:

(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—(a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.

WRC case law has been consistent in its application of section 42 of the Acts when questions have arisen as to the correct respondent where it has been alleged that a security guard acted in a discriminatory manner towards a customer. Several WRC decisions have reaffirmed that security agents employed by a security company are considered to be agents of the end-user (or retail store, hospitality provider etc.) and, as such, the end-user can be held vicariously liable for their actions under the Acts.

What about the WRC case law?

There have been numerous significant awards ordered under the Acts as a result of the actions of third-party security guards where the respondent (end-user) was held to be liable by the WRC.

In a 2023 decision, A Shopper v A Supermarket, an adjudication officer awarded the maximum award of €15000 to a complainant suffering from an intellectual disability who was refused admission to the respondent’s store because the security guard working in the respondent’s store incorrectly concluded that she had previously shoplifted.

Further, in the 2022 decision of A Minor v Iceland Stores Ireland Limited, the complainant successfully alleged that the security officer and manager asked her to leave because she is a member of the travelling community, and that she was treated less favourably to others in the shop who are not members of the travelling community. The adjudication officer in this case was satisfied that a prima facie case of discrimination had been made out and awarded the complainants (of which there were four) €3000 each.

The decision, of Anne Marie Davy v MCD Productions delivered in February 2021 related to a complaint under the Equal Status Acts of discrimination on grounds of disability when the complainant, who was an oncology patient and who had additional medical needs, was denied access to a disabled bathroom by a security guard whilst attending a concert. The adjudication officer ordered the respondent to pay the complainant €7000 in compensation for the effects of the prohibited conduct and, additionally, ordered the respondent to provide a policy with respect to management of facilities for persons with a disability to all its agents going forward.

Are there any defences available to respondents?

There is a defence available to respondents of Equal Status Acts claims under section 43(3) of the Acts if they can prove that “the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

In order to successfully invoke this defence, respondents not only should be able to point to the policies and/or safety statements they have in place with respect to diversity and inclusion and the provision of goods and services but also that they took steps to prevent the discrimination at the time the alleged discriminatory act occurred.

Adjudication officers have tended to examine the actual actions taken following the incident in determining whether the respondent can rely on the defence.

What awards have been made?

As outlined above, complainants who successfully alleged discrimination under the Acts have been awarded varying ranges of compensation up to the maximum award available under the Acts of €15000. The 2022 Annual WRC Report recorded that there were 506 referrals made under the Acts during 2022. The reality is that many of these cases were likely settled before they were scheduled for hearing due to the cost involved in defending the claim and the potential for reputational and brand damage to a respondent.

Whilst many companies are aware of the potential liability and reputational harm that can arise from equal status claims as a result of the acts of their employees, employers should also be mindful that they are also legally responsible for the discriminatory acts of their agents.

What are the key takeaways?

Given that end-users are the true respondents for claims brought under the Acts on foot of discrimination claims against third-party security agents, companies who engage security service providers should ensure that there are robust contractual indemnities in place with security agencies to cover any liabilities (to include settlements, awards, legal fees or otherwise) arising from complaints brought against the end-user under the Acts. Companies should also ensure that security guards or agents engaged by them who are dealing with the public are appropriately trained with respect to the companies’ diversity and inclusion policies and understand what actions could be considered as discriminatory under the Acts.

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