Complainant

Respondent

Parties

Derek  Blighe

Cork Builders Providers ltd (amended at hearing, on consent)

Representatives

  Appeared In Person

Hannah Cahill, BL instructed by  Barry C Galvin & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00043334-001

30/03/2021

On March 30, 2021, the complainant submitted a complaint to the WRC which outlined that he had been discriminated against in the provision of goods and service in a shop setting, because of his disability. The events at the center of the case occurred on 19 February 2021.

The Respondent operates a building supplies business and receives carriage of the complaint on April 6, 2021. On May 21, the Respondent Solicitors furnished a completed ES form dated 7 May 2021 and a defense of the claim to the WRC. 

The case came to hearing on 16 June 2022, where the Complainant presented as a litigant in person and the Respondent was represented by Hannah Cahill, BL instructed by Barry Galvin Solicitors.

At the conclusion of the hearing, I requested sight of the ES1  form which opened the complaint by the complainant against the respondent first in time.

The Complainant acknowledged that he had not retained this document and I requested a copy from the Respondent file. I received the ES1 on  July 11, 2022.

The Complainant outlined that in the course of attending a family medical appointment on 19 February 2021, he took the opportunity to attend the builders’ providers adjacent to purchase a piece of protective clothing.

The Complainant detailed on his complaint form that he attended the shop with his son but was denied entry for not wearing a mask by the Branch Manager.

The Manager offered to get him what he needed but entry was denied. The Complainant offered to exhibit a letter which confirmed his disability. But this did not alter anything.

The Complainant accepted the product, paid for it and left for home.

On the day of hearing, the Complainant repeated the outline and centred the time of the occurrence as 2pm on 19 February 2021. He submitted that he had been treated unfairly and   no other alternatives to refusal were considered by the respondent.

Evidence of Mr Blighe, Complainant

In evidence during the hearing, the Complainant submitted that in the course of attending a family medical appointment, he identified his need to purchase a hard hat for work.

He recalled approaching the shop, where there were workers outside. He was informed that he needed to wear a mask to enter the premises. He replied that due to a medical condition, he was unable to wear a mask. This was disregarded by the Respondent. He was informed that the Respondent had a duty of care to customers and staff around mask wearing.

He was served the hat outside and paid €8.00 for it.

He was very upset at what had happened and he conveyed this on the ES1 form submitted.

He took this action to promote an awareness within his son on the importance of standing up for himself

In addressing the outcome sought, he replied that he was seeking an acknowledgement that he had been wrongly treated and discriminated.

During cross examination, he confirmed that Public Restrictions stood at level 5.at the time of the occurrence complained of.  He denied breaching travel restriction rules as he had been attending a family medical appointment in the vicinity .

He acknowledged that he was offered a mask to wear and refused.

The Complainant confirmed that his disability arose from a speech problem. He confirmed that he had not been granted a medical exemption by his Dr in December 2020. He was aware of the presence of the statutory instrument on restrictions. He stated that he placed himself in the category of exemption.

The complainant explained that he believed that he had been rejected and not entertained when he tried to give his reasons   for not wearing a mask. He interpreted the message received as that “my disability doesn’t matter “

He did not accept that the Respondent operated in accordance with the presiding legislation. He acknowledged that he had been served the requested good i.e., a yellow hat, but the Respondent had not taken account of his disability. He referred to a letter of 2010 which clarified his disability.

He accepted that he had not complained on the day and attributed this to having his son with him and not wanting to make a fuss. He had not made a customer service complaint.

The Complainant communicated his understanding of Section 4(4) of the Act He said that he had taken the precaution of taking his temperature before leaving home and he did not have symptoms of covid 19. He said he would have gone for sanitiser if he had been allowed entry to the store.

In clarifications with me and following an expansion on the definition of disability, the complainant clarified that his breathing was “not the same as anyone else who could wear a mask “He did not experience any limitations in the life he led, and he was not in receipt of treatment currently for his condition.

He clarified that the refusal complained of centred on service and not supply of goods. He was uncertain whether he had led with “medical “or “disability “reason at the doorway on 19 February

He told the hearing that he had not considered online shopping because of the parallel family medical appointment.

In closing remarks, the Complainant contended that he had been refused the same service as other customers as he was not wearing a mask.

He acknowledged that his case had been heard.

The Respondent operates a Builders Providers and has denied the claim raised of discrimination on grounds of disability and failure to grant reasonable accommodation.

On May 12, 2021, the Respondent submitted a copy of the “reply to notification, ES2 form”

The Respondent replied to the complainant and explained that the presence on the doorway reflected a monitoring of adherence to Covid Regulations at the premises. The Respondent stated that customers were required to wear masks and one was offered to the complainant on that day.

The Complainant informed the Manager that he carried a letter of exemption for mask wearing

from his doctor.

The Respondent was unable to accept this position as masks were compulsory at the store. The Manager offered to bring the sought after good to the complainant and both parties transacted accordingly. The Complainant appeared satisfied with this and did not complain.

At hearing, Counsel for the Respondent outlined that the circumstances of this case were set against the backdrop of Covid 19 restrictions, where face masks were mandatory. Statutory Instrument SI 296/2020 prevailed.

It was the Respondent case that they did not discriminate against the complainant, nor deny him reasonable accommodation. The Complainant did not present evidence of a medical condition or give reasons as to why he was unable to wear a mask.

The Respondent was relying on Section 4(4) of the Act

Discrimination on ground of disability.

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service 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.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(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.

…….

Evidence of Sean Twomey, Manager

Mr Twomey outlined that the business operated across two branches and had been deemed an essential service during the Covid Pandemic. Masks were mandatory and were offered to customers at the door of the store. Customers not wearing masks were served at the door through credit card system. There were signs to that effect, and it was Company Policy.

Mr Twomey recalled meeting the Complainant on February 19. He recalled they had a joke regarding the colour of the hard hat. The complainant gave him €10 in payment and was given change. He said that he was shocked to be at a hearing which categorised the occurrences as discrimination on grounds of disability.

During cross examination, he confirmed that he was unaware that the complainant was disabled.

Mr Twomey confirmed that he was live to the high-risk environment around Covid 19, which he described as a dangerous disease.

Mr Twomey told the complainant that he did not recall him telling him that he was exempt from wearing a mask. The Complainant countered that he had said that he was not interested. This was not disputed.

He confirmed that he followed the company Policy and Legislative guidelines in customers presence in the store. He recalled that one of two customers had refused to wear masks, at which point, Gardai were summoned, and they explained the practice to them.

 Mr Twomey confirmed that the February 19 interaction with the Complainant lasted 5 minutes. He had training in Equality but was unsure if there was an Equality Policy in place for customers. He was aware that a customer complaints procedure was available at the store.

Mr Twomey confirmed that the store had adopted the measures of “click and collect “in addition to home delivery of goods during covid.

The Respondent submitted that the Complainant had not attained the burden of proof necessary in Section 38A of the Act. The Complainant had relied on a medical condition for which he was not exempted. He did not produce evidence of a disability which prevented him in wearing a mask.

The Respondent had acted reasonably in accordance with Regulation  5 of SI 296/2020. The Respondent was motivated in the provision of safety to their staff, families and customers.

Counsel for the Respondent denied that the complainant had been discriminated against during February 19, 2021.

The Respondent furnished a copy of the ES 1 form, which was shared with the Complainant for comment.

I have been requested to consider the circumstances of this case and to decide whether the Complainant was discriminated against on grounds of disability in his purchase of the protective equipment on 19 February 2021. In addition, I must also consider whether the complainant was denied reasonable accommodation in accordance with Section 4 of the Act.

In reaching my decision, I have considered the oral evidence adduced at hearing. I have also considered the oral and written submissions of the parties.

I also took time to review the ES1 And ES2 form relied on by the Parties in this case.  

Section 3(1) of the Equal Status Act outlines the occurrence of discrimination. This is built on the definition contained 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.

Discrimination (general).

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 3(2)(g) outlines the grounds of disability

(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 4(1) outlines the rule around Reasonable Accommodation

Discrimination on ground of disability.

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service 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.

Section 5 of the Act provides a clear prohibition to discrimination in the provision 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.

Notification Requirement:

Section 21 of the Act provides a pathway to furnishing a complaint of discrimination to the WRC. As a first step, an aggrieved party is required to submit a written notification to the provider of goods or service provider as outlined in Section 21 (2) of the Act.

I sought this submitted document and noted the contents submitted directly in the aftermath of the occurrence at the centre of this case on February 19, 2021.

The Complaint was framed in the following fashion:  The Complainant had attempted to enter the store to make a purchase but was refused entry as he was not wearing a mask. The complaint went on to refer to the complainant not being able to wear a mask and a letter was in existence to demonstrate this. He was still refused and was compelled to make his purchase from the doorway.

I have observed a regrettable delay in the Respondent furnishing a response to the complainant.

In Judy Walsh textbook Equal Status Act 2000-2011, she observes that in accordance with Section 21(2)A) the notification must be sent within two months of the alleged discrimination and must cite the allegation and the complainants’ intention to seek redress under the Acts if not satisfied by any reply received.

In the instant case, the Complainant submitted his complaint to the WRC on 30 March 2021 and during that 6-week period the Respondent had not furnished a response to the claim on the ES2 form.

It is of central importance for me to note that the ES2 form was dated 7 May but was incorporated with the Respondent response to the claim dated 12 May 2021.

I have found that this delay in furnishing a response was material to the complainant enduring a prolonged upset regarding the occurrences at the centre of the case. It was of keynote that he told me that he did not draw any benefit from the furnishing of the ES2 form, when it did arrive. I understand that, in part as it had been overtaken in time by the WRC complaint form on 30 March 2021.

In referring to a former Equality Tribunal case of O’ Brien and Mc Carthy v Ruari’s Bar, Tralee, DEC-S2007-039, the former Equality Officer emphasised the joint purpose of notification

1.early notification to the respondent

And

2 “It affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal “

Unfortunately, this was one occasion, where resolution did not preface the hearing in the case.

I have found the facts of this case to be very sensitive to both parties directly involved in the case. I found both witnesses to be cogent and honest in their evidence.

Burden Of Proof

Section 38A provides for the burden of proof in this case

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.

The onus is on the Complainant to provide evidence from which I can infer that prohibited conduct occurred.

This brings section 3(2) (g) into sharp focus as I must be satisfied that on the balance of probability.

1 The Complainant is covered by the relevant discriminatory ground relied on of disability

2 There was specific treatment by the respondent

3 The treatment of the complainant was less favourable than the treatment that was or would have been afforded to a comparator in similar circumstances.

Disability

1. Did the Complainant possess a disability?

Section 2 of the Act defines disability

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.

I note that the Complainant was not clear whether he had referred to his condition preventing his wearing of a mask to enter the store as an illness or a disability on February 19. He did not exhibit the letter referred to on February 19, 2021. Instead, he exhibited a Speech and Language Report which did not outline a diagnosis. This report was dated June 2, 2010, and was incomplete and not reflective of a confirmed disability or description of limitation.

I asked the Complainant is he was receiving any treatment or was limited in his life by the reported speech problem in anyway? The answer to that question was “no “on both counts.

The Complainant did not purport to practice a philosophical belief around mask wearing. He said he just could not wear one and accepted that he had declined the offer of a mask from Mr Twomey. He had taken steps to ensure a record of his temperature before he left home. He was prepared to use sanitiser if granted entry to the store.

I accept that the Complainant did experience an unease regarding wearing a mask, but this unease did not, in my opinion amount to a disability.

It was not lost on me, either the absolute genuine approach adopted by Mr Twomey as he took his responsibilities to keep covid at bay for his customers staff and their families. I also noted that he believed that the transaction had been conducted safely in that respect.

I find that there is some scope for a period of reflection regarding both party’s interactions on February 19, 2021. Rejection can reignite earlier trauma in a person’s life, and I find that this goes to the root of the circumstances of this case.

The Complainant was a very good advocate in his own case. Mr Twomey was a very good advocate for the services he ran, and the operational challenges live on February 19, 2021.

I have not established that the Complainant had a disability as described in Section 3(2)(g) He has not satisfied the first leg of the burden of proof and in the absence of a confirmed disability, I cannot find that he was denied reasonable accommodation n resect of a disability.

I have, however, identified that the Complainant was embarrassed in front of his son to be refused entry to the store. He considered that he had settled for less in agreeing to a doorway transaction He understood that the WRC was the correct pathway to complain this.

 In a brief commentary on SI 296/2020. The Emergency Legislation that coincided with the emergency period of covid 19. It is of note that the enforcement of these provisions rests with various government departments, health and local authorities as provided for in Section 38A of the Health Act, 1947 and are not before me as an Adjudicator. It is of note that details of these measures were not incorporated on the ES2 form.

I have found that the complainant did not have a disability in accordance with Section 3(2) (g) of the Act.

I have listened to the Respondents reliance on Section 4(4) of the Act and the parameters of SI 296/2000.

I find that the Complainant in not possessing a disability in accordance with Section 3(2) (g) of the Act, has not satisfied the burden of proof required for him to reverse that burden to the Respondent.

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 considered all the submissions written and oral advanced by the Parties. In addition, I have considered the ES1 form submitted by the Respondent post hearing, on confirmation that the complainant had not retained the master copy.

I have now concluded my investigation and relay my decision in the case.

I find that the complainant was not discriminated against by the Respondent on grounds of disability, contrary to Section 3(2)(g) and section 5 of the Equal Status Acts.

I have also found that the complainant in the case was not discriminated against by the Respondent on grounds of disability in accordance with Section 4 of the Equal Status Acts in respect of a refusal to grant reasonable accommodation, as defined in that Section.

Face Mask, Face covering, Discrimination, Equal Status, Disability