Indian security guard who punched shoplifter loses case for discrimination

Darragh Mc Donagh

An Indian security manager who was demoted after punching a shoplifter who called him a “P**i paedo b*****d” has lost a case for discrimination against his former employer.

Syed Baqur Hussein had claimed he was discriminated against and harassed on grounds of race when he was issued with a final written warning and demoted following an incident that occurred at the Jervis Street Tesco store in August 2022.

He was employed as a contract manager by One Complete Solution Limited (OCS), where he alleged in his complaint to the Workplace Relations Commission (WRC) that there was a “culture of racism”.

His allegation of discrimination was founded on the basis that three security personnel had been involved in the Jervis Street incident.

Two of these, who were Asian, were sanctioned; while a third, who was a white European, faced no disciplinary action.

Mr Hussein told the WRC that he was called to assist a colleague who had stopped a customer carrying €400 worth of unpaid-for meat in his bag. He was asked to return the items, which he did with his wife.

The shoplifter was told to leave the store and started calling the complainant a “P**i paedo b*****d”. He slapped another security guard and pushed him in the back, causing him to collide with Mr Hussein.

He claimed that the customer lunged at him and punched him in the face a number of times. The shoplifter’s wife also kicked Mr Hussein in the face during the incident. He suffered serious facial injuries and required X-rays.

When he returned to work following pre-planned leave, Mr Hussein was suspended, and an investigative meeting took place on January 6th, 2023.

A disciplinary hearing followed, and he was issued with a final written warning and demoted.

OCS told a WRC adjudication hearing that Mr Hussein had been sanctioned for failing to acknowledge that punching a customer was inappropriate behaviour, and for failing to follow agreed processes when confronted by an aggressive customer.

In her decision, WRC adjudication officer Máire Mulcahy said Mr Hussein had raised a presumption of discrimination, and the onus was on his former employer to rebut this inference.

She said the company had explained the different treatment that he received compared to his colleagues by reference to the fact that he had hit the customer without being hit himself, and this could not be considered self-defence.

It argued that Mr Hussein had not complied with protocol, and this breach was considered to be gross misconduct. He was accused of dangerous behaviour and failure to follow company procedures.

Ms Mulcahy noted that another security guard involved in the incident had tried to restrain the shoplifter with “open hands”, while Mr Hussein’s fists were clenched during the altercation.

Therefore, he acted in a different way to his comparator, the white European employee, who had complied with procedures and sought to de-escalate the situation.

OCS also produced data showing that both Irish and non-Irish workers had been demoted and given final written warnings in the past.

There were flaws with the disciplinary process, Ms Mulcahy said, such as the failure to provide Mr Hussein with notes of meetings, and no mitigating factors such as provocation had been factored into the decision-making.

However, she said the harshness of the sanction or the unacceptable injuries that he sustained were not determinative of a finding of discrimination. Instead, it was necessary to show that less favourable sanctions had been meted out to non-Asians.

Employers may act unfairly, but this is not necessarily discrimination, Ms Mulcahy noted. On the totality of the evidence, she added, the respondent company had rebutted the inference of discrimination.

Accordingly, she found that Mr Hussein had not been discriminated against in relation to the sanction applied to him following the incident at the Jervis Street Tesco store.

A separate complaint of harassment on grounds of race related to an act that occurred outside of statutory time limits, and the WRC therefore lacked jurisdiction to consider the matter.

Ms Mulcahy recommended changes in the company’s Bullying and Harassment at Work Policy, and also recommended that posters in the workplace should remind staff that they are entitled to work in an environment free from racial harassment.