ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033445

Parties:

	Complainant	Respondent
Parties	Catherine Winston	Lenehans

Representatives

Kevin Langford Arthur Cox

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00044106-001	17/05/2021

Date of Adjudication Hearing: 04/07/2022

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant alleges that she was discriminated against on the grounds of disability in relation to the provision of goods and/or services.

Summary of Complainant’s Case:

In November 2020, the Complainant attended at the Respondent’s store. She had to return items to the shop that she had bought a few days earlier. She entered the store without issue. When in the store one of the employees at the end of the store told her that she could not be in the store without a mask. He had said that to her a few days earlier too. She told him then, and again on this occasion that she was exempt. He then said that he would serve her over by the front door. She refused to go over to the door and asked for the manager. Mr. Lenehan was up on a ladder at the time but he climbed down and came over and told her that Government Regulations were in place and as a result of that he had to ask her to leave. She responded by stating that the legislation was very clear in relation to exempt individuals, and if she was exempt, which she was, she didn’t have to wear a mask and she didn’t have to tell him why. She then when and got the rest of the items she came for and she left. After she had left she decided to go back and show the owner, Mr. Lenehan her letter of exemption. She did that because she knew him well. When she got up to the door the doorman told her, that even if she had a letter he was told not to let her in if she was not wearing a mask. She asked if the manager could come out to her. He did. He was taken aback that she actually had a letter exempting her from wearing a mask. She then told him that he had discriminated against her and they now had a problem. She was very angry about how she had been treated. She felt that the whole situation was disgraceful, and she told him that she would be taking the matter further.

Summary of Respondent’s Case:

The Respondent provided a detailed written submission prior to the hearing.

In summary the Respondent relies on the fact that when the Complainant came to the store on the first occasion on the 20th November, she was not denied access to the store and was not prevented from doing what she came to do. On her own admission, she did what she came to do and then left. When she returned later that day she did so for the purpose of showing the Respondent the envelope containing her letter of exemption. On that occasion she was not availing of a service or seeking to purchase goods.

Findings and Conclusions:

The Complainant alleges that she was discriminated against on the grounds of disability in relation to the provision a service.

I must decide, based on the documentation submitted and the evidence adduced at the hearing, whether or not, the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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 38A (1) 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."

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

It is submitted by the Complainant that she is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”. The Complainant did not provide any information in relation to her medical condition to the Respondent or to the WRC. She did submit a letter to the WRC, dated the 16.06. 2020, from her GP which stated, “Catherine struggles to wear a face-mask due to medical issues”. I note that the certificate is only in relation to face masks and not face shields. Furthermore, the letter does not disclose any medical information and therefore I cannot properly assess whether or not the Complainant is suffering from a disability within the meaning of the act. I must conclude therefore that based on the lack of medical evidence that the complainant did not meet the threshold required to prove a disability. Furthermore, even if the Complainant had provided medical information to me that would satisfied the legal definition of a disability, the Respondent could not have discriminated against her on the grounds of that disability because they were not informed of it at the material time. For the Complainant to state “I am exempt” is not sufficient. There are other grounds set out in S.I. 296/2020 which may exempt someone from wearing a face covering that do not amount to a disability. If someone seeks to rely on an exemption set out in S5 (a) (i) and/or (ii) in a discrimination claim on grounds of disability, they must disclose at the very least evidence of their exemption, at the material time. At the time the Complainant came back to the store with her letter of exemption she was not availing of goods and/or services, so whether or not she showed the actual letter to the manager at that stage is not relevant. I also not that the Complainant was not actually denied access to the shop and was not prevented from doing what she came to the store to do.

In such circumstances I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability. The complaint fails.

Decision:

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.

The complaint fails.

Dated: 08-08-2022

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll

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