Complainant

Respondent

Parties

Bernard  Carberry

T. O` Huiginn & A Comlucht Teoranta T. O` Higgins & Co. Ltd

Representatives

  Self

 Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042707-001

25/02/2021

This case is concerned with a claim that the Complainant was discriminated against on grounds of disability when his claim of an exemption from the Covid Regulations, specifically SI 296/2020 regarding the wearing of facemasks was rejected by the Respondent in his store in Galway.

No issue of serving notice under Section 21 or receiving a reply arises in this case.

The following is a summary of factual background set out in the Complainant submission and his in-person evidence at the hearing.

The Complainant explained that on the day in question he went to his family home in Claddagh, Galway City after he was informed the toilet was broken. His travel outside the 5km limit was provided for under S.I. 448/2020 Health Act 1947, reasonable excuse. Travel outside of his residence for essential purposes, in this case the essential need to attend to a vital family matter including providing care to vulnerable persons-also provided for in S.I. 448/2020.  Having examined the toilet and on deciding that parts were needed he decided to go to Higgins and Co to buy the necessary parts as they had a history of high-quality goods and service. S.I. 294/2020 and 244/2020 were also cited.

The Complainant stated that he was in the store a few days previously and was served- there was no issue about him not wearing a mask. On the second day he went back to get some bits and pieces. He did not enter the store through the delivery entrance. He was not asked to put on a mask as he entered the store.  When he went to a counter there was no issue about him wearing a mask. This happened when Mr Daly (Store Covid Officer) addressed the member of staff behind the counter asking what had he said before about serving people with no mask. The Complainant spoke to Mr Daly and said he was exempt, but Mr Daly would not accept this. Then he spoke to a manager who at first said there were no exemptions in the store policy and then asked for proof. The Complainant said he did not have to provide proof, but the manager kept insisting that he did. Other staff then got involved and he was subjected to abuse. There was a threat to call the guards. This went on for ten minutes or so before he had to leave.

The Complainant described what happened as embarrassing and humiliating and this took place in front of others. His health and safety were at risk if he was forced to wear a face mask.

In his written statement, the Complainant stated’ The respondent wishes to advance a case suggesting that a failure to wear a face covering could cause harm to others. To advance this case, I believe he must prove that face coverings offer protection from Covid-19 and in this regard no less than peer reviewed studies will be accepted. I believe the burden of proof rests with the respondent to prove the effectiveness of face coverings, failing which how can he advance a position that my failing to wear a face covering could cause harm.’

The Complainant submitted a paper from Annals of Internal Medicine discussing the Danmask 19 trial.

He contended: at no point did the respondents staff seek to accommodate me in any way in any way in accessing the goods and services that was so desperately needed as evidenced by the witness statements submitted by staff which also supported his assertion that there was evidence of hostility and unreasonable behaviour toward him by the Respondent.

Regarding the disclosure of medical evidence, the Complainant read the following from his statement ‘that he was not comfortable disclosing his private medical history to anyone buta medical practitioner of my choosing, nor should he feel obliged to do so. It is he said, his belief that there is no mandatory requirement to do so. It is he said, his belief that there is no mandatory requirement for me to disclose my private medical matters with the Respondent, his staff or his legal representative. The respondent, his staff and his legal representative work or reside in the Galway area, as do I, and these people have no legal obligation to keep my private medical matters strictly private on the conclusion of this hearing, if I chose to disclose this information. This would place my private medical information in the hands of the respondent, his staff, or his legal representative and places myself at the risk of public ridicule and humiliation. The potential risk of the respondent, his staff, or his legal representative in misplacing my private medical hands and falling into the wrong hands, whether intentionally or not, is also a concern to me. The fact that the information would be placed in the public domain via the Workplace Relations Commission website may also violate my right to medical privacy if I was required to disclose personal medical matters in this hearing. For the above reasons I do not consent to my private medical information being discussed at this hearing. If it is concluded in this hearing that the disclosure of my disability is a requirement for my claim to proceed, then what is the purpose of doctor client confidentiality agreements and data protection laws which are in place and designed to protect personal private information. The most I am willing to disclose in this hearing is that my disability falls under the Equal Status Act 2000’.

The Respondent submission set out some of the background around Covid and Government directions in December 2020 which included the closure of all but what were deemed to be essential services. The Respondent runs a hardware/builders merchant store and as such was deemed an essential business. Citizens were required not to travel outside of a 5km radius of their home except in certain circumstances. The Complainant did not live within that radius at the time when he went to the Respondents store and his journey would have involved him passing at least five other stores on his journey to the Respondents store.

The Respondent spoke to their staff and reassured them that they would strictly enforce the public health guidelines regarding access to the premises as there was such anxiety around the Covid situation. Perspex screens were in place and there was signage around the store that a face covering must be worn on entering. Additional security personnel were employed in order to enforce the Regulations and to ensure that temperatures were taken and that face coverings were in place.

On 12 January 2021, the Complainant entered the store. He failed to enter through the front door instead using the deliveries entry. The security person at that door asked him to put on a face mask but he refused. He then approached the plumbing and trade counter. A customer then approached a Mr Daly informing him that the Complainant was not wearing a face mask. Mr Daly then approached the Complainant who in turn asked him what law he was quoting to which Mr Daly replied that it was company policy on health and safety grounds, indicating the signs around the store regarding the wearing of face masks. Other customers then began to demand that the Complainant wear a face mask at which point Mr Daly walked away to diffuse the situation.

A Mr O Donovan, senior staff member, then approached the Complainant who said he was exempt from wearing a face covering on medical grounds. When Mr O Donovan asked for confirmation of the medical exemption, the Complainant said he was not legally obliged to show same and by now was recording matters on his phone. He was asked to desist but refused, he was then asked to leave the premises at which point he said he would be in contact with the Workplace Relations Commission.

The Respondent had in place a service whereby a customer could call the store and arrange to have an item ready for collection in order to avoid any need to enter the premises. The Complainant did not avail of this service. On February 1st, the Complainant made a complaint to the Respondent and Mr Higgins replied on February 5th.

Legal Arguments

Referencing Section 2 of the Equal Status Act, it was submitted that it is incumbent on the Complainant to prove that he has a disability to come within the scope of the Act. At no juncture did the Complainant explain what condition renders him medically unable to wear a face covering. Referring to the Statutory Instrument cited by the Complainant and which was in place at the time (296/2020), it was submitted that it was not unreasonable nor discriminatory for the Respondent or the personnel of the Respondent to seek confirmation of the exemption the Complainant had on medical grounds. To state that the Respondent could not seek some form of comfort of the “reasonable excuse” being relied upon by the Complainant would make a nonsense of the Statutory Instrument. This could result in the entire population not complying with wearing a face mask and merely stating that they were exempt. This is not a plausible scenario.

The references to various statutory instruments as set out by the Complainant suggest that he was very well versed in these matters, almost certainly more than most members of the public. Indeed, his reference to and submission on a medical review and submitting a requirement for peer reviews suggest that the public health guidelines regarding the wearing of a face covering were a matter of keen interest to him. Be that as it may, the Respondent is certainly not required to justify public health guidelines per se, specifically the requirement to wear masks, he has as much say or control over such guidelines as the Complainant, which I suggest is very little given these instruments of public health policy were decided by Government Advisers and Ministers, as is well known. That the exemption aspect was unclear as to the Respondents rights in the matter was probably not particularly helpful to businesses in his position or his staff who were trying to enforce the regulations. And this leads to the conundrum which I have addressed previously, interestingly, with the same Respondent in Galway, in another case. That conclusion still applies, that is it not the role of an Adjudication Officer in the WRC to interpret a statutory instrument issued by a Government Department under legislation which does not fall within the domain of the WRC. That would be a matter for another forum. Unless of course, it should be added, it was being suggested that a statutory instrument fell foul of some legislation for example equality legislation in a defined way. Who would be the Respondent in such a case is another issue again. In any event, the complaint here is not the contents of the Statutory Instrument but that the Respondent in this case discriminated against the Complainant on grounds of disability. And this fact goes to the heart of the case and the defence.

The sections of the Equal Status which describe discrimination merit inclusion:

“disability” means –

(a)    The total or partial absence of a persons 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 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.

“discriminate” means to discriminate within the meaning of section 3(1) or 4(1)

Section 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)…

Section 3(2) sets out the grounds which for the purposes of this case at (g) states:

‘That one is a person with a disability and the other either is not or is a person with a different disability’

It is well established that the first test which must be met by any Complainant when complaining about discrimination on the basis of a discriminatory ground is that they must be able to demonstrate that they are in fact comprehended by the definition of that ground. This conclusion is reinforced by Section 38A (10 of the Equal Status Act which provides:

“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’

If follows from all of the extracts from the legislation that the first requirement in any case where a person is claiming discrimination is that the Complainant who is claiming discrimination on grounds of disability must be able to provide facts to which will satisfy at least one of the criteria which define disability under the Act. In many cases such a disability will be known or obvious. Or a description of a medical condition will be acceptable to a Respondent in many circumstances or where an explicit description is given such that a claim of a disability is not disputed.  The key however is that, in order to prosecute a claim of discrimination on grounds of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, they must be able to provide evidence to support that claim. Acknowledging that this can be a difficult area for people who have a disability dealing with strangers, the requirements of the legislation cannot be waved away or ignored when a complaint of discrimination is made.  A statement ‘I have an exemption’ is a statement of fact suggesting that it has been approved by someone and the Respondent merely sought evidence of that statement of fact.

The difficulty for the Complainant in this case is that when he was asked by the Respondent for medical evidence that he was exempted, he refused, providing no details of any kind. Thus, the Complainant is attempting to mount a complaint of discrimination against the Respondent on grounds of disability having refused to provide such evidence on the day. He has maintained that position in his complaint to the WRC and at the hearing of his complaint. At the hearing he did say that wearing a mask causes him serious distress and he is not able to wear a mask. While there is no evidential basis for doubting the Complainant in this regard, a statement of distress and not being able to wear a mask could not be taken at face value to meet the terms of any of the five definitions of disability set out in the legislation or indeed if such a reaction is a medical condition. Such a reaction does not amount to an obvious and readily acceptable disability.

Concerned about his points in relation to privacy and disclosure of medical information in a public hearing, the Complainant was asked if I were to anonymise the Decision i.e. with no parties named and if I were to give a commitment not to give any details of his medical condition in the Decision, could he provide medical evidence to demonstrate that he does indeed have a disability and would he provide such evidence to the hearing. The response was no and no. He stated that was not in a position to provide medical evidence and he was not prepared to do so. It should be said that the Respondent solicitor objected to any such approach on my part-referring to the rights of her client to defend their reputation, the obligations regarding public hearings and the purpose of the Zalewski Judgement.  I disagreed with her approach but given what followed in terms of my decision the argument is moot.

Based on the Complainants own response to the questions regarding anonymising the Decision and omitting any details of a disability, I informed the Complainant that in circumstances where he was either  unable to support his claim of a having a disability by way of medical evidence and that he was unwilling to provide any such evidence to the hearing in any event, there was no point in continuing as there was no possibility that his claim of discrimination on grounds of a disability could succeed in the circumstances. To continue the hearing would be a waste of time for all concerned, and therefore, unless the Respondent wished to call witnesses I intended to close the hearing and would issue my decision. The Respondent stated that she did not wish to call any witnesses.

 The hearing closed with a further apology to the Complainant for the delay in rescheduling the hearing.

CA-00042707

The complaint of discrimination brought by Bernard Carberry against T O Huiginn & A Comlucht Teoranta is not well founded.

Covid Regulations SI 296/2020-exemption from wearing face masks-discrimination on grounds of disability