ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032493
Parties:
| Complainant | Respondent |
Parties | Anthony Lyttle | Buy Wise Discount Stores Costcutter North Strand |
Representatives | Self-represented | Conall Shaw, Denis Finn Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043060-001 | 14/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043060-002 | 14/03/2021 |
Date of Adjudication Hearing: 26/08/2021
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 25 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.
This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
No objections were raised to the remote hearing.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public and that this decision would not be anonymised.
Background:
The complainant submits that he was discriminated against by the respondent on grounds of his disability in January 2021 when he was refused access to a service following his refusal to wear a face covering. He submits that the respondent also failed to provide him with reasonable accommodation for a disability. The claims were submitted on 14th of March 2021. The respondent denies they discriminated in any way against the complainant. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043060-001 | 14/03/2021 |
Summary of Complainant’s Case:
The complainant submits that he went to the respondent premises to purchase milk on the 5th of January 2021. He submits that upon entering the store, a member of staff asked him to put on a face mask and that he subsequently advised the staff member that he was exempt. The complainant submits that rather than bring his disability to the attention of the other customers he advised the staff member that he would wait outside to speak to the manager. When the manager came out, he told the complainant that he would either need to wear a mask or that he would need to see to see the complainants exemption in order to let him into to the shop without a mask. The complainant submits that he stated that he was exempt due to his reasonable excuse and that he was not required to provide evidence of this. The complainant submits that manager of the shop confirmed to the complainant that wearing a face covering was shop policy and that he could take the matter up with the owner. The complainant submits that he did return to the shop at a later stage to discuss the matter with the owner and this is the basis of his second complaint (CA-00043060-002). The complainant submits that he has a reasonable excuse which amounts to a disability within section 2 of the Equal status acts and that he was treated less favourably than another person in a comparable situation on the disability ground. He also submits that the respondent did not do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities. |
Summary of Respondent’s Case:
The respondent submits that on 5th of January 2021 the complainant came to the respondent premises and asked why his wife had not been served in the shop earlier that day when she had refused to wear a face covering. The respondent submits that they advised the complainant that the shop was enforcing rules in relation to face coverings in order to protect the staff and customers from Covid. The respondent added that they have staff with medical conditions that are coming to the shop every day , to keep the shop open, and it is their duty to protect everyone. The respondent submits that the complainant then asked if he wanted to buy bread and milk if he would be served without a face mask. The respondent submits s that they replied directing the complainant to the sign in the window stating that customers are required to wear a face covering which can be a mask, or Face shield/ visors for the people with medical condition as HSE advised at the time. The respondent submits that the complainant then left the shop stating that he was going to his solicitor. |
Findings and Conclusions:
The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’ Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is, (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”), Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts. It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”. The complainant advised the hearing that he is a person with a disability. The complainant advised the hearing that he suffers from ‘Claustrophobia’ and that it is triggered by covering his face. He stated that covering his face causes him anxiety. The complainant when questioned advised the hearing that he did not have a medical diagnosis or any medical report or documentation to support his claim. The complainant stated that he had not spoken to a medical practitioner about this issue in about 20 years but that it had recently been triggered by the requirement to wear a face covering. He stated that he had suffered an incident 20 years previously but that he had not been to a physician in relation to the matter and could not produce any evidence of any diagnosis. In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability. The respondent advised the hearing that the complainant had not advised them of any disability. The complainant when questioned as to whether he had advised the respondent of the existence of a disability stated that he did not believe that he had to provide any reason other than to state that he had a reasonable excuse for not wearing a mask. The complainant in this case has submitted a claim to the WRC on grounds of disability claiming that he was discriminated against on the ground of disability. The complainant asserts that he was treated less favourably on the grounds of his disability and in respect of a failure to provide him with reasonable accommodation for that disability. The complainant is thus required to demonstrate that a prima facia case of discrimination exists. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. I find that the complainant in this case has provided no evidence/documentation in relation to his disability. I find that the complainant has also failed to provide any evidence in support of his assertion that he was treated less favourably by the respondent on grounds of a disability or that the respondent failed to provide him with reasonable accommodation for such disability. In such circumstances I am satisfied that the complainant has failed to establish a prima facia case of discrimination on grounds of disability. Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability. |
Decision:
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.
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision. (i) the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and (ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043060-002 | 14/03/2021 |
Summary of Complainant’s Case:
The complainant submits that having been refused entry by the respondent on the 5th of January 2021 (CA- CA-00043060-001) he returned to the store a few days later to address his previous complaint with the owner of the store only to discover numerous signs on the outside of the premises denying access to anyone who was not wearing a mask. The complainant submits that this amounts to a refusal of service under the Equal status acts as the signs give the appearance of refusing a service to persons who may have a reasonable excuse or have a disability within the meaning of the Equal Status acts. The complainant submits that he has a reasonable excuse within the meaning of the statutory instrument, and he views the ‘no mask no entry’ sign as a refusal of service. The complainant submits that there is no obligation or requirement for him to provide evidence of a reasonable excuse. |
Summary of Respondent’s Case:
The respondent submits that on 5th of January 2021 the complainant came to the respondent premises and asked why his wife had not been served in the shop earlier that day when she had refused to wear a face covering. The respondent submits that they advised the complainant that the shop was enforcing rules in relation to face coverings in order to protect the staff and customers from Covid. The respondent added that they have staff with medical conditions that are coming to the shop every day , to keep the shop open, and it is their duty to protect everyone. The respondent submits that the complainant then asked if he wanted to buy bread and milk if he would be served without a face mask. The respondent submits that they replied directing the complainant to the sign in the window stating that customers are required to wear a face covering which can be a mask, or Face shield/ visors for the people with medical condition as the HSE advised at the time. The respondent submits that the complainant then left the shop stating that he was going to his solicitor. |
Findings and Conclusions:
The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’ Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is, (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”), Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts. It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”. The complainant advised the hearing that he is a person with a disability. The complainant advised the hearing that he suffers from ‘Claustrophobia’ and that it is triggered by covering his face. He stated that covering his face causes him anxiety. The complainant when questioned advised the hearing that he did not have a medical diagnosis or any medical report or documentation to support his claim. The complainant stated that he had not spoken to a medical practitioner about this issue in about 20 years but that it had recently been triggered by the requirement to wear a face covering. He stated that he had suffered an incident 20 years previously but that he had not been to a physician in relation to the matter and could not produce any evidence of any diagnosis. In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability. The respondent advised the hearing that the complainant had not advised them of any disability. The complainant when questioned as to whether he had advised the respondent of the existence of a disability stated that he did not believe that he had to provide any reason other than to state that he had a reasonable excuse for not wearing a mask. The complainant in this case has submitted a claim to the WRC on grounds of disability claiming that he was discriminated against on the ground of disability. The complainant asserts that he was treated less favourably on the grounds of his disability and in respect of a failure to provide him with reasonable accommodation for that disability. The complainant is thus required to demonstrate that a prima facia case of discrimination exists. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. I find that the complainant in this case has provided no evidence/documentation in relation to his disability. I find that the complainant has also failed to provide any evidence in support of his assertion that he was treated less favourably by the respondent on grounds of a disability or that the respondent failed to provide him with reasonable accommodation for such disability. In such circumstances I am satisfied that the complainant has failed to establish a prima facia case of discrimination on grounds of disability. Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability. |
Decision:
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.
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision. (i) the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and (ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. |
Dated: 16th December 2021
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words: Facemask, Face covering, Discrimination, Equal Status, Disability
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