ADJ-00033208

Complainant

Respondent

Anonymised Parties

A Customer

A Retail Shop

Representatives

  In person

Noel O'Gorman

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043940-001

06/05/2021

This complaint - discrimination on grounds of disability and failure to provide reasonable accommodation - is brought under the Equal Status Acts 2000-2016. The complaint is that the Respondent refused to serve the Complainant on 31 March 2021 within the Respondent’s retail shop because of the Complainant’s disability and/or failed to make reasonable accommodation for her disability.

The Respondent asserts that disability has not been proven, the Respondent was not aware that the Complainant had a disability on the date in question and the Respondent did not refuse to serve the Complainant but rather asked that Complainant wear a face mask while she was in the shop to comply with Covid 19 government guidelines that were in place at that time. 

Jurisdiction

No preliminary jurisdictional issues arise in this case. The complaint was brought within six months of the alleged breach and notice was given by the Complainant to the Respondent using an ES1 form within two months of the alleged breach. 

Anonymisation of parties

Given the particulars of disability provided in the evidence of the Complainant, with the application of the Complainant and the agreement of the parties, I considered that special circumstances existed which allowed me to use my discretion to conduct the adjudication hearing other than in public and issuing this decision without the identities of the parties being disclosed. 

The Complainant gave the following evidence under affirmation.

The Complainant attended the Respondent shop on 31 March 2021, with her son, who was of third-level college age.

The Complainant was not wearing a face mask in the shop and the Respondent owner of the premises (hereafter referred to as the Respondent) approached her and informed her that she was required to wear a face mask if she wanted to shop. The Complainant told the Respondent that she was medically exempt because of a medical condition, that she had a breathing condition which meant she only had the use of half of her lung capacity. At the Adjudication the Complainant identified this condition as being bronchiectasis although she did not use that word when describing her condition to the Respondent on the date in question.  The Complainant considered that she was not obliged to give this level of medical detail so she described the condition to the Respondent as being a lung condition instead. She was concerned that other customers would overhear her and this was a private matter for her.

The Complainant explained that she had been in the hospital receiving treatment for her lung condition two days earlier and she offered to show the Respondent her negative PCR Covid test from the hospital, but the Respondent did not wish to see it. The Respondent said “I do not need to see anything if you are not wearing a mask”. The Complainant asked her, “how am I to shop in that case?” The Respondent told her that she could get someone to shop for her or shop online doing shop and collect. The Complainant explained to the Respondent that the only person who could do the shopping for her was her son but he attends college and does not live near her and the internet connection where she lives is poor so online shopping is not an option for her. At that point her son joined the conversation and suggested that he finish the shopping and that his mother wait outside the shop, which she did.

The Complainant considered this to be unfair because some people are medically exempt so a shop owner should not be asking everyone, including those who are unable to wear a mask, to wear a mask. What is the point of an exemption, if it is not applied? When she shopped elsewhere if she said “I am medically exempt” no one questioned it. This was the first and only time that her assertion was queried. Where the Complainant works in a hotel as a night manager, she does not wear a mask, because she was exempt and her employer fully accepted this.

On her person at the time the Complainant had a negative Covid test from the hospital 2 days earlier and she also had a letter that she provided to her workplace, setting out that she was medically exempt. She offered to show both to the Respondent, but the Respondent said that she didn’t require to see anything, that it was simple, in order to shop, a customer needs to wear a face mask and if a customer was not wearing a mask, they were required to leave the shop premises.

The Complainant was cross examined.

It was put to her that she had not provided any evidence of her medical condition to the Adjudicator, which she accepted.

It was put to her that she was treated the same as any other customer walking into the shop, all of whom were required to wear a mask. She said she had a medical condition and as such should have been treated differently.

It was put to her that while it was accepted that she told the Respondent that she was medically exempt she did not tell the Respondent that it was bronchiectasis or even that she had a lung condition. She just asserted that she was medically exempt and that she offered a two-day old Covid result. The Complainant denied this. The Complainant said that she did tell the Respondent that she had a medical condition and explained why she could not wear a mask. She also explained that she had a negative Covid result on her phone. She accepted under cross examination that she did not offer proof of her medical condition to the Respondent in the shop and that was because, in her view, her assertion of a medical exemption should have sufficed, because it sufficed for every other shop she went into.

It was put to her that a range of alternative ways of shopping were available to the Complainant. These were online shopping, telephoning a list into the shop, giving a shopping list to dedicated volunteers who got shopping from vulnerable customers or getting some one she knew to shop for her.

It was put to her that she was not asked to leave the shop and that she was not refused service. Instead it was the Complainant’s son who intervened and offered a solution and that appeared to suit all parties.

The Respondent will say that the engagement with the Complainant was – at all times – courteous and cooperative and given that a solution was identified by the Complainant son and carried out in a very amicable way, the Respondent was extremely surprised when she received the ES 1 form notifying her that a complaint would be brought. Of all the uncomfortable conversations that the Respondent was required to have with customers during the Covid pandemic about the wearing of face masks, this had been the most civil of all of them.

The Respondent accepted that the Complainant asserted that she had a medical exemption but did not provide any proof of a medical condition because she was not asked for it.

The Respondent submitted to the Adjudicator that no evidence of disability was before the Adjudicator and that the complaint of discrimination should not succeed.

The Adjudicator asked the Complainant what proof of medical condition had she, on her person, in the shop. She stated that she had a letter from her GP which she had provided to her employer which allowed her work without a mask and a negative Covid result, but the Respondent had not wanted to see either.

The Respondent gave evidence under oath as follows:

The Complainant was shopping in the Respondent shop on 31.3.21. It was around 7pm and the shop was quiet. The Complainant was not wearing a mask and the Respondent approached her and asked her if she had a mask. The Complainant said she did not but that she had a negative Covid test from being in the hospital two days before. The Respondent apologised but told her that she needed to put on a mask, that the Gardai had told her that everyone needed to wear a mask in shops. The Complainant told the Respondent that she was medically exempt but did not say on what basis. The Respondent then explained she could shop online (the Complainant said that did not suit because her internet was bad) or she could send/email a list to the shop and collect it later, she could drop in a list or ring in her order and delivery could be organised or someone could shop on her behalf.  At that point her son came along and asked what was happening. When it was explained he offered to finish the shopping and the Complainant then left and went outside.

The whole conversation was civil, polite and quiet.  There were hardly any customers in the shop in any event.  She didn’t refuse to serve the Complainant. The matter was taken out of the Respondent’s hands by the solution provided by the Complainant’s son. As the Complainant left, she thanked her for understanding and she thanked the Respondent.

The Covid situation in the county was very bad at that time. She had staff and customers to protect. She couldn’t allow any weak link. Everyone had to wear a mask. All the signage on the shop front clearly indicated that. It was a difficult time for everyone.

The Respondent was cross -examined as follows:

It was put to her that it was very obvious from talking to the Complainant that she was breathless and had reduced lung capacity. This was not accepted by the Respondent.

It was put to the Respondent that the Complainant maintained a social distance at all times, which the Respondent did not disagree with.

It was put to her that she said to the Complainant that there had been earlier instances in which the gardai needed to attend and fined a person, even when that person asserted that they had a medical condition, which the Respondent accepted was so but that was a matter for the gardai and every assertion of the need to wear a mask did not necessarily meet the exemption criteria.

It was put to her that she was unable to avail of any of the alternative shopping arrangements because this relied on her knowing people in the community to do shopping for her or on use of internet. The Respondent responded that the solution on the day was provided by her son and that she did not ask the Complainant to leave the shop. It never got to that type of disagreement. The whole conversation was very civilised.

Following the Respondent’s evidence, her representative made the following submissions;

-          This is a discrimination case under the Equal Status Acts based on an assertion of disability.

-          There is no proof of disability provided either at the Adjudication and it is denied that the disability was identified to the Respondent at the time. Even if the Complainant’s evidence is accepted that she said that she had a lung condition, which is denied, the assertion of that, is not proof of a disability. It is not accepted that proof of disability was even available at the time in question (given that the proof was a letter written by her GP for the purpose of her employer, the content of which was not seen.)

-          Reasonable accommodation can only be made if a Respondent is aware that a disability exists. Both parties accept that no proof of disability was provided to the Respondent on the day in question. The Complainant contends that she offered proof - in the form of a GP letter to her employer – but that the Respondent wouldn’t read it, but she also stated, in contradiction, that she regarded her assertion she was medically exempt, sufficed.  However, there is no conflict over the fact that no evidence of disability has been produced at the Adjudication hearing and a complaint of disability discrimination requires such evidence to be considered. Not least to establish whether or not the Complainant has a condition that amounts to a disability.

At the end of the evidence, the Adjudicator asked the Complainant about the lack of evidence as to her disability. She requested that she be given some time to locate that evidence and send it to the other side and to the WRC. The Respondent objected to any adjournment and contended that the matter had been listed for hearing on that day, the guidelines in preparation for a WRC Adjudication hearing should be followed and it was unfair to hear all the evidence and then allow the Complainant to rectify the deficiencies in her evidence. Furthermore it was unfair to expect the Complainant to return to the Adjudication hearing on a second occasion with the additional legal costs that accompanied that. The onus of proof to prove a prima facie case of discrimination had not been discharged by the Complainant and the decision should issue based on the evidence that had been given.

The Adjudicator stated that she understood the concerns of the Respondent however the Adjudication was an inquiry, and the Complainant was not legally represented, so some latitude needed to be afforded to the Complaiannt. The Adjudicator stated that given the Complainant’s serious long standing lung condition she must currently have some document or record in her possession from her GP or hospital where she received medical treatment for her lung condition, that she could furnish. The Adjudicator requested that a record, document or photo of a document – be forwarded to the Adjudicator as proof of disability and the Adjudicator would allow 30 minutes for such proof to be located and forwarded to the WRC and the Respondent’s representative. At which point the Adjudication broke for 30/40 minutes.

At the conclusion of the break, when the Adjudication resumed, the Complainant stated that she had spoke to the GP practice manager who said that they would require 72 hours to issue a doctor’s letter verifying that she had bronchiectasis. The Adjudicator asked if the Complainant had any other record or document in her possession, which referred to her condition, and the Complainant said she did not.

/end of evidence and cross examination.

Hearing in private

Under section 25 (2) of the Equal Status Acts 200-21 I determined that this hearing should be conducted in private due to the existence of ‘special circumstances.’ The Complainant’s medical condition of bronchiectasis is a serious one and is a matter that she wishes to keep private. Disclosure of this medical condition in the media or in a published decision on the WRC website could negatively impact her professional and personal life.

Substantive Findings and Conclusions

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

This case is a discrimination complaint brought under the Equal Status Acts 2000- 2016 arising from an alleged refusal to provide a service (in this case, shopping) to the Complainant, on the basis of a prohibited ground, in this case, disability, a lung condition known as bronchiectasis. There is also a claim that there was a failure by the Respondent to make reasonable accommodation for the Complainant’s disability.

The first hurdle in any discrimination case, that the Complainant is required to prove, is that she has a disability and that because of that disability that she was treated less favourably by the Respondent than a person in the same situation as she was, who did not have a disability.

This is different from whether or not she had a defence to a charge that she was in breach of government rules on the wearing of face masks in a public (including retail) setting. In many of these equal status complainants have unfortunately conflated these two matters. Just because someone with a disability may be entitled to assert a defence of reasonable excuse if they are charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask, is evidence  that they have been discriminated against or that there has been a failure to make reasonable accommodation for them.

The questions that arise for consideration in this Equal Status Act Adjudication are:

(a)    Did the Complainant have a disability?

(b)    Did the Respondent know she had a disability?

(c)     Was she discriminated against for reason of her disability?

No evidence has been put before me that the Complainant has a disability and because the claim of discrimination hinges on the fact of disability, this is evidentially problematic for the Complainant.

It is surprising, given the long-standing nature of the medical condition that the Complainant was unable to produce any proof or document to show she has this condition nor any explanation as to why she does not have any such proof within her possession.  It is not that I disbelieve the Complainant, it is just that no evidence has been provided to support her assertion and without such evidence, this fact cannot be assumed to be true.

This Adjudication Decision could begin and end at this point because there has been a failure to provide the basic facts upon which any decision in the Complainant’s favour might be made.

However because this would yield an unsatisfactory result  - one which would satisfy neither party – I intend to proceed to the next question because even if the fact of disability was proven at the Adjudication hearing, in order to succeed in her claim the Complainant would need to show that the Respondent also had knowledge of the Complainant’s disability at the time of the alleged breach.

On this question, the evidence of the parties differed.

The Complainant’s evidence was that she told the Respondent that she had a lung condition and offered to produce evidence to prove that but the Respondent chose not to see it.

The Respondent said that the Complainant claimed she said she was medically exempt but state what her condition was and did not provide or offer to provide proof of same.

In determining whose evidence is more credible I am influenced by the changing nature of the Complainant’s evidence.

It is accepted that the Complainant offered to provide proof of a negative Covid test (from the hospital two days earlier) but in respect of her medical condition, the Complainant gave conflicting versions of what she told the Respondent. First she said that she had a lung condition and offered proof of same. Second she said that she had a lung condition but offered no proof of same. Third she said that she told the Respondent  that she was medically exempt and could rely on that assertion alone and was not obliged to provide any evidence to prove that assertion (as occurred in other shops she went to.)

Given these varying accounts I am more persuaded by the Respondent’s evidence which was that – during the conversation the Complainant asserted that she was medically exempt and beyond that did not either offer to provide proof and did not go further to explain the basis of her exemption.

I am satisfied therefore that the Respondent was not made aware of the Complainant’s disability on the date in question and therefore could not be said to have discriminated against the Complainant on grounds of her disability or could not be said to have failed to reasonably accommodate the Complainant.

In Equal Status complaint, as in any discrimination complaint, the Complainant is obliged to prove facts from which a reasonable inference of discrimination can be found. Proof of disability and proof that the Respondent was aware of the disability at the time that the alleged breach occurred are fundamental and necessary proofs. In this complaint the Complainant has failed to meet this obligation

For the above reasons I find this complaint is not well founded. 

I find this complaint is not well founded

Equal Status Act – Discrimination  – Face masks