Complainant

Respondent

Parties

Zeljko  Pranjic

Mercury Food Distributors Limited

Representatives

  Appeared In Person

 Appeared In Person

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00043014-001

11/03/2021

On March 11, 2021, the complainant, a Croatian National submitted a complaint of discrimination against the Respondent retail business under the Equal Status Act 2000, as amended. He submitted that on 11 January 2021, during his visit to the Respondent shop., he had been discriminated against, in the provision of goods and services on grounds of disability.

The Complainant was a Lay litigant and submitted the ES1 relied on in the case.

The Respondent operates a retail outlet and appeared in person. The Respondent denied the claim and submitted some documentation which they relied on in informing the business interaction with the complainant.  

At the conclusion of the hearing, I requested that the Complainant provide documents pertaining to his disability in his possession, produced at hearing and shared with the Complainant at hearing.

These were received as requested  and did not illicit further comment from the Respondent.

At my request, the Respondent submitted the external body advice and guidance on the management of covid in a shop setting. These were received and shared with the complainant . I have incorporated his response in the body of this document .

The Complainant outlined his written complaint, that in the course of a late evening visit to the Respondent shop on January 11, 2021, in the company of his partner, he stopped at the store entrance where his attention was drawn to a sign displayed as “No Mask, No Service “

Both the Complainant and his partner were unable to wear masks and had planned to explain these circumstances, if requested.

The Complainant proceeded to shop and was approached by an unnamed member of staff., who asked both he and his partner about masks. The Complainant outlined that he explained his exemption from mask wearing and he was requested to exhibit proof.

The Complainant submitted that he took issue with the nature of her Inquiry and sought to explain that he suffered from severe distress in relation to mask wearing.

He disputed the Store Members reliance on Garda Instruction on seeking proof of exemption from mask wearing.

The Complainant informed the store Member that “this was discrimination “He was requested to leave the shop and he did so.

The Complainant exhibited a copy of ES1 form dated 15 January 2021 with registered postage dated 18 January, with confirmed receipt on 20 January 2021.He attached “exemption letters “from HSE website.

The complainant recorded that he may have been discriminated by the Respondent on grounds of disability in the course of being asked to leave the shop for not wearing a mask on January 11, 2021.

“… I confirm that I have a reasonable excuse within the meaning of the Statutory Instrument, and I say that I view the “No Mask, No Entry “sign in the Respondent store as a refusal of service.

I say that my reasonable excuse amounts to a “ disability “ within the meaning of Section 2 of the Equal Status Acts and that I was treated less favourably than another person has or would be treated in a comparable situation on the “ disability ground” given that I was subjected to “ prohibited conduct” by the Respondent arising from my disability and reasonable excuse which resulted in the Respondent refusing me service on the occasions noted in section 3 of the within complaint as a direct result of my inability to wear a face covering……. “

Preliminary Issue:

On 4 May 2022, the complainant wrote to WRC seeking that the hearing in the case be conducted in private as he did not wish to reveal his medical data. He added that his witness would be unavailable due to an overlap in WRC scheduled cases.

At the hearing, the Complainant made application to have the decision in the case anonymised as he submitted that he had not given permission that his personal data on health could be released.

The Complainant outlined that his Witness had been at an earlier case before WRC that day and was therefore unavailable.

 I explained that both cases had previously been scheduled for the same time slot, but that in cooperation with the scheduling section, I had secured a sequencing to two separate hearing on that day, which were 2 hours apart. This had been shared with all parties prior to hearing.

In response, the complainant accepted that there was no reason why the witness was not present now at hearing.

Evidence of the Complainant at hearing:

The Complainant outlined that on January 11, 2021, at 18.45hrs he walked towards the respondent shop in the company of his wife. He stopped at the front door of the shop, where he noticed a sign which stated “No Mask, no entry “He did not secure a photograph of the sign.

The Complainant told the hearing that he was unable to wear a mask as the mask affected his emotions and his behaviour. He had not experienced any difficulty with this position up to that day.

He described himself as a regular fortnightly customer at the shop 

He outlined that he entered the shop and took a basket. Within one moment, he was approached by a female staff member who asked him about wearing a mask. He explained that he could not wear a mask due to a medical exemption, for which he was requested to exhibit proof.

The Complainant told the lady that this amounted to his personal Information, and she was not entitled to ask for him for this information.

The lady responded by informing him that he could not be served. The Complainant explained that he had skin problems.

The lady went on to show him a guidance letter which originated from a Garda Siochana. (Submitted at my request post hearing and shared with the complainant for comment)

He challenged the lady’s legal basis for relying on this letter and observed her laughing about it.

The Complainants Partner recorded the encounter. Neither he nor his Partner were wearing masks.

The Complainant recalled that he was denied service because he was not wearing a mask in the shop, and this amounted to discrimination.

He hoped to raise awareness of the wrongdoing when he submitted the ES1 form on 18 January 2021. He anticipated a response and an explanation, and neither were received. He believed that his only option was to complain to the WRC.

The Respondent was invited to cross examine the complainant on his evidence.

The sole question placed by the Respondent of the Complainant centred on why had he chosen to come to Midleton to shop, when he resided in Cork? The Respondent put to the complainant that Level 5 lockdown was in place on the date of his visit to the shop and the complainant had veered outside his permitted 5 kms radius?

The complainant answered that he had” his reasons “but did not expand on those reasons. He denied receiving sight of the letter from Gardai.

By way of clarification, I asked the complainant if his skin condition had an identifiable name? The Complainant clarified that there was no name for the skin condition. He was not attending a GP as he couldn’t get an appointment in his residential area. He did attend a GP on 12 January 2021. He submitted that his skin condition was treated abroad. He exhibited a photo of the outcome of the GP visit the next day.

The Complainant clarified that the impact of mask wearing caused him to feel “itchy and nervous and his eyes reddened”. This skin condition originated in September 2020 and followed his wearing a mask for a few hours. A course of 3 days of anti-biotics was required to treat the condition.

He argued that SI 296 did not require the Respondent to inquire into his personal medical details.

He had not filed a customer service complaint at the shop

I asked the Complainant why he decided that the occurrence should be recorded? No recording was submitted. He replied that the Respondent had CC TV for their protection, and he wanted to secure proof of what happened.

I asked for some proof of disability on which the complaint was grounded. He agreed to furnish a photo of his January 12 treatment at GP.

 In his closing remarks, the complainant submitted that there had been no legal basis for the sign placed on the door. It was not directed by HSE website and amounted to a discriminatory action.

The Respondent had no legal standing on which to request people to wear masks or to request proof of exemption for those who cannot wear masks.

The Complainant submitted that he had been treated less favourably than any other person without a disability when he had been refused service.

The respondent operated a retail outlet and denied the claim of discrimination.

The Respondent did not file a written submission, but addressed the claim orally and through the evidence of the Shop employee, Ms AB.

The Respondent outlined that the ongoing pandemic of Covid 19 had heightened fear levels at the business. Numbers of customers were reduced to a maximum of 10 in the shop.

The Respondent gave a detailed outline of their seeking clarification on how to manage customers in a shop setting.

It was the respondent case that the complainant did not exhibit proof of his condition

Evidence of Ms AB, Cashier

Ms AB recalled the Complainant and his Partner being in the shop. Her manager was on duty on that day, and she informed her that customers had entered the shop without a mask. She stated that she had asked why they were not wearing a face mask and asked them both to wear a mask.

The Complainant told her that he had issues with mask wearing to which she responded that she was acting on HSE Covid 19 guidelines. She understood that these applied to everyone, apart from some customers, she had observed who wore plastic medical badges. She was also aware that some customers presented notes from their GP on “X cannot wear a mask “

She told the hearing that she had not seen the complainant in the shop previously and was unable to determine herself whether he was healthy or unhealthy.

She recalled that during the period called lockdown level 5, mask wearing was mandatory at the shop  

She denied that she had laughed at the complainant and confirmed that she was uncomfortable in the situation.

She was surprised that she was being recorded and as she hadn’t given her permission, she asked the complainants partner to stop recording, but the recording continued.

During cross examination, the Complainant posed the question as to whether a staff member was empowered under the SI 296 to impose a face mask policy?

The witness replied that she understood that no mask meant no entry and she expanded further on the badges of exemption she had seen. She said that she had not read SI 296

The Complainant asked her what was the legal basis behind her action?

The witness responded that she was not allowed to permit the customers shop without a mask. She had not made the rule, but this had come from HSE and Gardai.

She said that the shop management had compiled signs to refuse entry without a mask.

She told the complainant that she was unable to identify a disability in the complainant and she had not received a letter of exemption from him.

The Complainant confirmed that he was not obliged to show evidence of a disability

By means of clarification, Ms AB did not record this incident in a business log but recalled that the Complainant had said he would sue as he left. She confirmed that he had taken a copy of the Letter from Gardai with him. The couple had spent 5 to 10 minutes in the shop.

In closing, the Respondent re-affirmed that the period of time of Level 5 lock down was a difficult trading period at their business. They were party to a HSE inspection in environmental health.  They subsequently submitted a request for “the official procedure “surrounding customer management directly to the Gardai on December 22, 2020.

1Some customers did not wish to wear masks

2 Could the business refuse service if a customer doesn’t want to wear a mask.?

3 Can medical confirmation be requested?

 They submitted a copy of this advice received in accordance with SI 296 on face coverings dated 29 December. The author was not present at hearing.

1 Mandatory nature of face coverings in relevant premises, followed by penal provisions.

2 Reasonable steps to engage with persons entering a premises and encourage compliance

3 Entry can be refused, and Gardai called for assistance

4 Legislation silent on demanding proof of medical condition.

Gardai who attends the Business have additional powers in directing compliance, demanding names and addresses and prosecuting

The Complainant filed his response to these documents on 2 June 2022

1 The Complainant contended that the Garda statement was “entirely outside the scope of SI 296/2000” and this created an opening for “arbitrariness, abuse and discrimination of customers”

This was the main contention in the complainant’s response as the comments formed a relevant response to my request for comments on the respondent documentation submitted.

The Complainant added other remarks which were addressed at hearing.

I have taken some time and have considered the facts raised in this complaint of discrimination on grounds of disability. In arriving at my decision, I have had regard for the oral and written submissions from both parties in addition to the evidence of the parties adduced at hearing.

I have also considered the details of the Complainants Medical condition opened at hearing and forwarded in photocopy detail form post hearing.

I have also had regard for the Respondent post hearing documentation which they referred to a hearing as guiding the response made to the Complainants presentation at the shop without wearing a mask.

Preliminary Matter of request made for an anonymised decision.

Firstly, I must consider the application made by the Complainant for an anonymised decision at hearing.

He did not advance the earlier reference for a hearing held in private.

The essence of the complainant application at hearing was that data on his medical condition should not be publicised in the decision in the case. He did not wish to submit or reveal his data on his medical condition for analysis at hearing. This was in direct conflict with his stated willingness to produce medical information at hearing in the May 4 letter to WRC.

The Respondent had no issue with the application for an anonymised decision.

I listened carefully to both parties’ submissions on this preliminary point

I asked the complainant if he had consented to the throughput of his complaint of discrimination at the WRC.? He confirmed that he had consented to this. I clarified that I was charged with investigating a claim for discrimination, on which the burden of proof rested on him, the complainant to raise facts from which I could infer that discrimination had occurred and that details on his medical condition were an intrinsic part of that investigation. The Complainant submitted that the parameters of GDPR prevented details of his medical records being published.

The Complainant did not submit any medical reports in the case. He did not specify in what way GDPR impeded the investigation into his medical details.

I asked the parties to allow me some time to consider the application.

I explained to the Parties that I held a discretion under the Equal Status Act, 2000 in respect of naming parties in a decision.

Supply and publication of decision.

30.— (1) A copy of every decision of the Director of the Workplace Relations Commission under this Part shall be given to the complainant and the respondent and every such decision shall be published on the internet in such form and manner as the Director General of the Workplace Relations Commission considers appropriate and a copy thereof made available for inspection at the office of the Director of the Workplace Relations Commission.

I explained that I did not accept the complainant’s submission that his case should be anonymised. I explained that I had not identified any sensitivities which proved necessary to anonymise the decision e.g., involving children or any such special or sensitive circumstances.

I also explained that the purpose of the Equal Status Act 2000 was to prohibit discrimination and indirect discrimination on the 10 grounds. I assured the complainant that any records submitted would be used purely for investigative purposes in accordance with the provisions of the Act.

Note, Section 36, in that regard:

Supplementary provisions as to information.

36.—(1) Where, in the course or for the purposes of any investigation, mediation or hearing under this Part, or of any inquiry under Part V of the Employment Equality Act, 1998, any person discloses information to the Authority, the Director of the Workplace Relations Commission] or any other person entitled to obtain it, the disclosure shall not give rise to any liability (in contract, tort or otherwise) on the part of the person making it.

(2) No information furnished to or otherwise acquired by the Authority, the Director of the Workplace Relations Commission or any other person by virtue of sections 33 to 35, or otherwise in the course or for the purposes of any investigation, mediation, hearing or inquiry aforesaid, shall be published or otherwise disclosed except—

(a) for the purposes of such an investigation, mediation, hearing or inquiry,

(b) on the order of the High Court or the Circuit Court,

(c) with the consent of the person furnishing the information and of any other person to whom the information may relate,

(d) in a decision of the Director of the Workplace Relations Commission published or made available under section 30 and to which the disclosure of the information is relevant, or

(e) for the purposes of an application under section 35.

(3) In this section “information” includes any record, book, document or other thing in which the information is contained.

(4) A person who discloses information in contravention of subsection (2) shall be guilty of an offence

I confirmed that I intended to run the hearing with a plan to name the Parties on my eventual decision. I gave my reasons for this as the open justice model and in the public interest and  that I needed to be able to establish that the complainant was in fact covered by the relevant discriminatory ground of disability.

This was accepted by the Respondent, but the Complainant called it a “wrong decision “. I advised the parties to take a break to reflect on my decision.

The Complainant re-affirmed that he did not want details of his medical condition published. I explained that the complainant had the option to proceed to co operate with my investigation, where he would be treated with respect and sensitivity or to move to withdraw his complaint.

The Complainant took some time and agreed to proceed with his complaint at hearing.

The case proceeded on the decision that the application to anonymise the decision was denied.

Substantive Case:

My attention is first drawn to the composition of the ES1 in the case. Neither Party exhibited a copy of the “Advertisement “which led to the facts of the case unfolding.

The ES1 reflects a contention that “No Mask, no service “and “No Mask, no entry “were present at the outside of the shop on January 11, 2020. The Complainants own evidence reflected that the sign said “No Mask, no entry “He did not submit any photographic evidence in clarification. There was no evidence of a complaint to the Irish Human Rights and Equality Commission in accordance with section 12 of the Act on advertisements .

The Respondent did not provide clarity as to just what message was posted on the shop .

It is regrettable that the Respondent did not engage with the ES1 form as I have formed a view that the parties would have benefitted from a conversation on the events of January 11, 2021, much sooner than during the hearing.

This was a glaring omission by the Respondent and one which should not be repeated as an earlier opportunity to resolve this matter between the parties was lost.

I am also struck by the sensitivity around this issue for Ms A, the respondent witness as she shared details of a personal loss concurrent with the duration of the case.

In light of that sensitivity, I had decided to anonymise her witness evidence, while continuing to name the Parties. I rely on the persuasive authority of the UK EAT case of Dr Piepenbrock v London School of Economics and Political Science [2022] EAT 119.

Section 5 of the Equal Status Act prohibits any discrimination in disposing of goods and services

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

The burden of proof in this case is provided in section 38A of the Act

Burden of proof.

38A.— (1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

I explained this burden to both parties at hearing, conscious that neither party was formally represented and new to the revised procedures of the WRC on the rules of evidence and cross examination.

The Complainant had a tendency to interrupt my investigation and overall presented in a very defensive manner at hearing.

The Respondent had some obvious difficulty in expressing their response through a delay in language comprehension and legal points involved in the case.

My objective in this case was to allow the Complainant, in the first instance the opportunity to provide evidence from which I could infer that prohibited conduct occurred.

The Complainant has relied on the ground of disability as in section 3(2)(g) of the Act

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

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

 Section 4 on Reasonable Accommodation is a relevant consideration also in the presence of a proven disability.

As Judy Walsh states in her book Equal Status Acts 2000-2011

,” Reasonable accommodation refers to an obligation to adjust rules, standards, policies or physical environments to meet the specific needs of people covered by a protected ground. It involves removing barriers, and often treating people differently, in order to secure equality of opportunity”

Section 4(4) of the Act provides:

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

As a first step, I must be satisfied that the Complainant is covered by the discriminatory ground claimed, that of disability related to a skin condition.

As a second step, I must be satisfied that there was specific treatment by the respondent #

As a third step, I must then be satisfied that the treatment of the complainant was less favourable than the treatment that was or would have been afforded to a comparator in similar circumstances

It is important at this stage that I distinguish my role in this case as the assigned Adjudicator to the sole and confined investigation of a claim of discrimination on disability grounds in accordance with Section 25 of the Equal status Act, 2000.

 This is the scope of my Inquiry and I wish to make it clear that I have no delegated legislative authority in accordance with SI 296/2000, which has both a different origin and   trajectory of law and punishment.

 In this case, I found that the Complainant tended to conflate SI 296/2000 to serve as a

“Feeder law “for the Equal Status Act, 2000.

In my opinion, the Legislature never intended that a secondary instrument of law, which arose during the Emergency Period of Covid 19, in response to arguably unforeseeable circumstances, should be affixed and conflated in that manner.

For the Respondent part, I found a strong emphasis on promoting mask wearing at the business, however, there was no readily available Policy to that effect, which may have promoted a joint awareness of the business objectives in that regard for staff and customers.

It is common case that the Respondent did not seek Garda input on the evening of January 11, 2021, as provided for in the Advice Document dated December 29, 2020. The Gardai was not called as witnesses in this case.

A definition of disability can be found in Section 2 of the Act.

disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

It took me some time in this case to illicit the nature of the disability relied on by the complainant. I did not have the benefit of a medical report, past or present. I did ultimately receive two photographs of medication dated 12 January 2021, the day after the incident. The Complainant confirmed that I should not inquire into the nature of his disability and was reluctant in his direct evidence

instead, I had the complainant’s own evidence that he was unable to wear a mask as he had experienced discomfort in the past, due to a skin condition. He did not dispute that Ms Ab offered him a visor in the store. The Complainant was unable to name the skin condition he had.

It is very important for me to reflect that the Complainant did not put the Respondent on notice of the nature of his disability during the 5–10-minute visit to the shop. It is not my role to focus on whether the Complainant and in his partner were in breach of public health guidelines. It is, however, my role to focus on the facts as reported. In all that I heard, I was left with an unease regarding the recording of the exchange between the Complainant and Ms AB. I accept Ms AB evidence that she asked that the recording stop and it did not.

The Complainant did not seek to admit this in evidence.

The Respondents duty to provide reasonable accommodation originates from a disclosure of disability. I appreciate that there are enormous sensitivities around this topic, however, it is plain that that the complainant was bound to disclose the nature of his disability for the positive action of reasonable accommodation to flow.

Note the jurisprudence in Maughan v the Glimmer man ltd Dec-S2001-020 and more recently in Sofiya Kalinova and Permanent TSB ADJ 26607, June 2022, in relation to how the Bank in the case responded to a request for an accommodation of deafness through a Sign Language Interpreter.

I have not found evidence of this disclosure.

For me, the complainant’s evidence was insufficient for me to accept that the skin condition he spoke about amounted to a disability. This did not abate with the submission of the photographs of three items of medication dated 12 January 2021, the day after the shop visit.

I do not have medical reports, details of any limitation in his life or at the very minimum, a named diagnosis to support the claim for disability.

Instead, the complainant has sought to rely on the contention that “his reasonable excuse arising from SI 296 “amounted to a disability within Section 2 of the Equal Status Act, 2000

I have found this to be an incorrect interpretation of the law.

Based on my findings, I cannot be satisfied that the complainant possessed a disability so as to ground his complaint before me. He cannot, therefore, secure the burden of proof required in the case.

I have concluded that the Complainant has not raised a prima facie case of discrimination on grounds of disability in this case.

The claim is not well founded.

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.

I have concluded that the Complainant has not raised a prima facie case of discrimination on grounds of disability in this case.

The claim is not well founded.

Discrimination on grounds of disability