Complainant

Respondent

Anonymised Parties

A Customer

A Retail Shop

Representatives

  In person

 In person

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043441-001

07/04/2021

This is a complaint of discrimination brought under the Equal Status Act 2000 - 2016, wherein the Complainant asserts that the Respondent, who provides a retail service to the public, discriminated against him for reasons of disability. The complaint is that the Complainant attended the Respondent’s retail shop on two occasions (on 25.1.21 and 1.02.21) and on each occasion he was requested by the Respondent to put on a face mask. This was during the Covid pandemic period. The complaint was received by the WRC on 7.4.21 following which a reply submission was received by the WRC from the Respondent. 

At the outset it is accepted by the Respondent, in respect of preliminary jurisdictional matters, that the complaint was brought within six months of the offence and that a letter sent by the Complainant to the Respondent on 16.2.21, complied with the requirements of an ES 1 form and the Equal Status Act 2000-2016. As not issue as to jurisdiction arose the Adjudication hearing proceeded to a hearing of the substantive complaint of discrimination. 

On 3 August 2022, a day after the Adjudication hearing on 2 August 2022 the Complainant requested if he could forward additional documentation to the Adjudicator which was consented to on 3 August 2022 and an email address was supplied. However, as no further documentation was received, on 8 August 2022, the decision issued confined to a consideration of the documentation that was provided prior to the hearing and the evidence given by the parties during the Adjudication hearing.

The following is a summary of the Complainant’s evidence given under affirmation at the WRC Adjudication hearing on 2 August 2022:

The Complainant attended the Respondent shop on 25.1.21. He was shopping and was not wearing a face mask. The owner of the business approached him and told him to wear a face mask in order to meet government guidelines and to protect her staff and other customers from contracting Covid 19. The Complainant stated that he was medically exempt, to which the Respondent laughed and acted in a manner which gave the impression that she did not him. He paid for his groceries, without wearing a mask and left the shop. The Respondent told him not to return to the shop. The Complainant had the government guidelines in his pocket, but the Respondent told him she was not interested in reading this.

The next time that the Complainant attended the Respondent’s shop was on 1.2.21 when he attended with his partner. Again, he was not wearing a face mask. As he entered the premises, he noticed that the Respondent was staring at him with an annoyed expression. She approached him and said that she had told him already that he was to wear a face mask in the shop. She told him that she had the right to refuse to serve him if he did not wear a mask. He said that he was medically exempt and was not obliged to wear a face mask. He said that because he had declared that he had a medical exemption that was sufficient and he was not obliged to give proof of such an exemption because that would be in breach of the data protection laws. The Respondent then raised her voice and the Complainant was embarrassed by her treatment of him in this public place. She said that she would get the gardai and he could show his medical exemption to them. She told him that she could show him guidelines which showed her right to exclude people from the shop for not wearing a face-mask,  but the Complainant stated he did not wish to see this. The argument lasted approximately five minutes. Other customers were present and could hear the argument. The Complainant’s partner then asked if the Respondent wished to see her medical exemption. The Respondent said that she did not and that she was allowed to stay but that the Complainant was not.

The Respondent then allowed the Complainant to pay for the groceries and him and his partner left. The Complainant did not intend to return to the shop again.

On 16.2.21 the Complainant wrote a letter which put the Respondent on notice of the complaint as if it were an ES 1 form. In this letter the Complainant requested compensation in the amount of €500.00 otherwise he would seek to enforce the complaint.

At the Adjudication hearing the Complainant identified that his disability was anxiety. He accepted that this had not been disclosed prior to the hearing. The Complainant gave evidence that his anxiety arose out of sexual assault that he was exposed to as a child and because his brother was murdered when he was thirteen years old. The Complainant gave evidence that he has received medical treatment in respect of his anxiety and has attended counselling. The Complainant did not have a certificate or doctor’s letter to prove his disability on the dates in question, but asserted he was not obliged to do so. Nonetheless the Respondent was fully aware of his anxiety condition because the person who abused the Complainant was a person who had previously made deliveries to the Respondent’s shop and everyone in the town knew about the murder of the Complainant’s brother. On these bases it should be assumed that the Respondent was aware that the Complainant suffered from anxiety, because no one could go through such traumatic experiences without suffering from anxiety as a result.

The Respondent was given the opportunity to cross examine the Complainant but chose not to.

The Complainant’s partner gave evidence under affirmation. She said that she attended the Respondent’s shop on 1.2.21 and she then gave evidence corroborating what the Complainant had already said. She was shocked by how the Complainant was treated. The Respondent was clearly not interested in listening to what the Complainant was saying or any explanation that he might have. His partner offered to show the Respondent evidence of her medical exemption, but the Respondent said that there was no need. However, the partner felt that the courtesy that was shown to her by the Respondent was at odds with how the Respondent was disrespectfully treating the Complainant. The partner put this down to how the entire of the Complainant’s family were always treated by the Respondent. The partner felt that this was unfair and she felt hurt on behalf of the Complainant.

The Respondent was given the opportunity to cross examine this witness but chose not to.

The Respondent gave evidence to the Adjudication hearing under affirmation as follows:

The Respondent was not aware that the Complainant had an anxiety condition until the WRC Adjudication hearing.

The Respondent was aware that the Complainant’s brother died in tragic circumstances but was not aware of any other historical issue that might have caused him to suffer anxiety.  He was not a regular customer because he lived away from the town. The Complainant was wrong to assume that she knew of his anxiety condition. She was not aware of it.

The Respondent stated that the Complainant attended her shop on three occasions and not two; 18.1.21; 25.1.21 and 1.2.21.

These attendances occurred during the so called “second wave” of Covid 19 ie during the second lockdown in early 2021 at a time when infections were high and death numbers were high.

She accepts that on these occasions she asked the Complainant to wear a mask when she saw that he was not wearing one. The reason that she did this was because two out of her staff of fourteen had already contracted Covid, although she herself had not. Also at that time member of her staff had a pregnant daughter and she felt that she had a duty to take all precautions to ensure that none of her staff, particularly those who were vulnerable themselves or who had vulnerable people in their households, were exposed to a risk of infection. This was her duty quite apart from her obligations which arose under legislation. She told him that she had the right to ask him to wear a mask and if he did not, she would contact the gardai.

In respect of her obligations under law at this time, the Respondent gave evidence that mask wearing was mandatory in retail settings. The Respondent was merely following government guidelines. The Respondent asserted that she had the right to ask customers to wear a mask and if they would not, she could ring the gardai. She told him she had spoken to the gardai before this and they advised her that they were having to attend retain outlets in these types of situations on a regular basis. The policy of her shop, to meet the needs of customers who were medically exempted was that her staff could do the shop on their behalf with a list. She did this for a number of customers and there was a note on the shop window to this effect.

As it happened the gardai were not called and the Complainant was served. He cannot assert that he was refused a service, because he was served on both occasions.

The Respondent contends that the retail shop owners were in the front line at this point in the pandemic and they were entitled, indeed they were obliged to take steps to ensure that in providing an essential service they were not exposed to a risk. The Respondent had buried people who had died of Covid. The responsibility of employing staff and serving customers and ensuring that they were not exposed to a health risk or worse was one that she did not wear lightly.

The Complainant cross examined the Respondent in relation to her knowledge of his brother death, which she accepted. He also cross examined her about what occurred in the shop. He stated that the note in the window was not there until later, which the Respondent disputed.

Preliminary

By way of preliminary ruling, arising from outline of the Complainant’s evidence at the commencement of the hearing, I found that special circumstances existed which allowed me exercise my discretion to ensure that the identity of the parties should not be disclosed in the decision that issued. For this reason, this decision is anonymised.

Substantive Complaint

In this complaint, as in many other similar Equal Status adjudications on face mask wearing, there is a fundamental misunderstanding at the heart of the complaint.

Perhaps it would be useful to clarify at the start of this decision what this complaint concerns and what it does not.

This case is a discrimination complaint brought under the Equal Status Acts 2000- 2016 arising from the alleged refusal to provide a service (in this case, shopping) to the Complainant, on the basis of a prohibited ground, in this case, disability, in the form of anxiety.

This case is not about the operation of SI 296 of 2020 or whether or not an individual had a reasonable excuse defence in a prosecution asserting that he should have worn a face mask. While the complaint before me does not concern SI 296/2020, it may be useful to briefly consider that legislation. 

SI 296/2020 was introduced, as an emergency legislative measure “having regard to the immediate, exceptional and manifest risk posed to human life and public by the spread of Covid 19.” This statutory instrument was introduced as an amendment to the Health Act 1947, to ensure that anyone who entered a public space, during the pandemic, complied with the mandatory obligation to wear a face mask. Section 4 of SI 296/2020 states that: A person shall not, without reasonable excuse enter or remain in a premises, without wearing a face mask. Therefore, under this legislation it was mandatory for customers, at that time to wear a mask (or face prosecution) and it was mandatory for shop owners to take reasonable steps to engage with customers to inform customers of their obligations to wear a mask. Failure to do so could constitute a criminal offence.

Breaches under SI 296/2020 were initially punishable by a high-level fine/ and or imprisonment which was subsequently replaced with a tiered fine system and/or imprisonment.  A defence to a prosecution brought under SI 296/2020 was that where a person had a reasonable excuse not to wear a mask, because they suffered from a physical or mental illness impairment or disability, they would not be found guilty of an offence.

This complaint is not a prosecution under SI 296/2020. Rather it is a complaint of discrimination taken under the Equal Status Act 2000 and my jurisdiction is confined to that.

The first test in any discrimination complaint that the Complainant must meet is, has the Complainant proven that the Respondent discriminated against the Complainant - by refusing to serve him, on ground that he had a disability. If this prima facie proof of discrimination is not met, the complaint cannot be found to be well founded.

The prima facie case that needs to be proven by Complainant is not that he was treated unfairly by the Respondent. It is also not that he and his family were treated differently to every other customer that came into the shop, because the discrimination complained of must have occurred because of a prohibited ground. He must prove that he was refused service because he had a disability, in his case the disability of anxiety, as compared to another customer who came into the shop who did not have such a disability.

For this test to be met the Complainant is obliged to show that the Respondent knew of his disability, in advance of his attendance at the shop, because a charge of discrimination based on disability does not stand unless it is shown that the Respondent knew of the disability.  Therefore, as Adjudicator I must ask is there evidence that the Respondent was aware that the Complainant had a disability?

On this point the Complainant accepts that he did not provide proof of his disability at the time and he also did not provide this proof during the Adjudication hearing.

So in relation to the question - was the Respondent aware that the Complainant had a disability on 25.1.2021 or 1.2.2021 - I am not satisfied that the Complainant has discharged this obligation.

I do not accept the Complainant’s contention - that it should be assumed that the Respondent knew of the Complainant’s anxiety condition – to be persuasive.  Response to trauma is entirely subjective to the trauma and the person involved. While it is accepted that the Respondent knew of the traumatic circumstances of the death of the Complainant’s brother, there was no evidence to suggest that she knew about the abuse that took place. Nor can it be assumed that the anxiety that was caused by these events was known to the Respondent.

In the absence of the proof that the Respondent was aware of his condition I do not consider that the prima facie proof of the fact of discrimination has been met by the Complainant.

I am satisfied that this case comes within the four corners of previous Adjudication decisions (ADJ – 00032493 and ADJ- 00032638) which found that once a complaint alleging discrimination on grounds of disability is made, where the claim is disputed, medical evidence must be provided to support the claim under the Equal Status Acts. The purpose of providing such evidence is not an invasion of privacy but to allow the Adjudication Officer to determine if a disability is established for the purpose of the Equal Status Act and to allow the Respondent to have that evidence before them.

In this case no medical evidence has been provided by the Complainant to prove that he suffers from a disability. I do not accept that knowledge of this disability should be imputed to have been within the knowledge of the Respondent. This finding is fortified by the evidence of the Complainant’s partner whose opinion was that the unfair and unequal treatment between her and the Complainant arose not due to the Complainant’s disability but was due to interpersonal difficulties that the Respondent had with the Complainant’s family (which is not a prohibited ground).

Lastly it is significant that the Complainant was ultimately served by the Respondent in the shop on both occasions. So even though I am not obliged to consider anything beyond the failure by the Complainant to show that the Respondent was aware of his disability, I am also satisfied that even if knowledge of disability had been proven, the Complainant was not refused service by the Respondent and therefore cannot assert that he was refused service on discriminatory grounds.

I find that this complaint is not well founded.

This complaint is not well founded

Failure to wear a face mask in a retail setting during Covid 19 pandemic