Complainant

Respondent

Parties

Raymond  Whitehead

The Health Store Unlimited

Representatives

Tommy Smyth, Tom Smyth & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045164-001

12/07/2021

The complainant went to the respondent’s shop in Stillorgan Shopping Centre on 24/03/3021 to purchase some vitamin and mineral related products.  He was asked by a member of staff to wear a face mask and he refused as he said that he has health issues which impact on his ability to wear a face mask.  He was annoyed as not being served and went to his car to obtain his mobile phone and made a short recording of the shop and also the assistant who he interacted with.  The respondent denies that it discriminated against the complainant and that its employees were acting in line with the regulation then in place.

The complainant describes himself as a pensioner who takes his health very seriously.  He describes that he had a number of health issues in his live and takes vitamins and minerals to maintain his health.  He is a regular customer at the respondent’s shop.  The complainant outlined that he has a problem wearing a face mask and to wear one could have serious implications for his health.

On the day of the incident, 24/3/2021, he attended the shop and was asked by an assistant to wear a face mask.  He explained that he was medically exempt from wearing a face mask.  The assistant informed him that he would not be served.  He was told that he could be served from the door of the shop, but he rejected this as he needed to browse the shelves in order to decide which products he wished to purchase.  The complainant submitted that he had read the legislation and that this made provision for the non-wearing of a face mask a person had a “reasonable excuse”.  The complainant believes that the wearing by could be “life threatening to me”.  While the legislation did not clearly define “reasonable cause” he believed that he had more that a reasonable cause not to wear a face mask.  The complainant outlined that he had went into other shops and when he explained his situation there were no issues.  The complainant also outlined that he had visited the same respondent’s shop between 10-12 times prior to this incident and during the pandemic and there were no issues.  The staff member on the day took issue and told him that he was not being served.  The complaint took issue with the respondent’s submission that he was agitated, confrontational and that he took a video recording of the incident.  He also denied that he followed the staff member.  The complainant gave evidence that he was not aggressive or confrontational.  He did not take a video of the incident as his phone was left in his car.  He did return to the car to get his phone and then took a video of the shop and asked the assistant to confirm her name.  This video lasted approximately 30 seconds.  The complainant also took issue with the respondent’s view that he followed the assistant.  He gave evidence that he was 10-15 feet away at all times and the assistant went behind the counter.  He did not follow her.

During cross examination the complainant confirmed that he did not show any evidence of his medical exemption on the day.  He outlined that he felt that his medical matters were confidential between him and his GP.  The complainant also confirmed that he did not have a letter from his GP indicating that he was exempt from wearing a face mask.  The complainant outlined that he requested such a letter from his GP, but this was refused as the GP held the view that everyone should wear a mask.  The complainant also confirmed that he was not happy wear a visor, but this was not offered on the day of the incident. The complainant also confirmed that he was offered to be served from the door of the shop, but he declined this as it did not suit.

Following the incident, the complainant sent the Form ES1 to the respondent on 20/05/2021.  The respondent did not reply to this form.

At the resumed hearing on 17/08/2022 the complainant took issue with the respondent’s statement and confirmed that he still disputed the accuracy of that statement.  He did not video the initial interaction and he did not follow the assistant.  He denies that he was aggressive.  What actually happened was that he went back to his car and obtained his mobile phone and returned to the store and recorded the security man who was called and then recorded the assistant stating her name and confirming that he would not be served inside the store.  The complainant played this video which lasted approximately 30 seconds for the Adjudication Officer and the respondent’s representatives.

The offer to be served from outside the store was not acceptable as he would not remember what items he required.  The complainant stated that the “shop is my memory” and by browsing he can remember which items he requires. He has done this on a regular basis and in the previous year without the need for a face mask.  This incident was the first occasion he was asked to wear a mask and he noted that Ms X was not a regular employee in the store.

The complainant also submitted that he was able to use the store for approximately one year and was never asked to wear a mask.  The store is in breach of its duty of care by allowing him not to wear a mask for a year if its case stands up.  The complainant also noted that the legislation states that a person is exempt from wearing a face mask if they have “reasonable excuse”.  There is no requirement in the legislation of a requirement to produce a medical certificate, medical records or a letter from a doctor.

The respondent raised a preliminary matter in relation to the unavailability of a key witness.  This witness was the assistant who served the complainant on the day of the incident.  Should this evidence be required or critical then an adjournment would be necessary.

It was submitted on behalf of the respondent that the legislation was imposed on employers in view of the public health emergency.  There was no formal guidance issued in relation to the management of this legislation and there was no other legislation that could be used as a credible precedent.  The Health Store, like other employers, took this matter seriously and undertook great care to ensure the safety of their employees and customers.  The usual examples of hand sanitiser, signage, floor markings, training of employees and a regular cleaning and disinfecting regime were all undertaken.  It was submitted on behalf of the respondent that the protocols were the subject of inspection by the Health and Safety Authority.  The respondent also had to take account of the provisions of SI 96/2020, The Health, Safety and Welfare at Work Act, Public Liability provisions of their insurance, the Employment Equality Act and the Equal Status Act.

It was submitted on behalf of the respondent that the Health Store chose not to engage with the complainant following his visit to the store.  This was because his behaviour towards their employees gave them no confidence the such engagement would be beneficial. The store had experience of customers expressing frustration at not being allowed to enter the store without a face covering and it was their experience that such customers proved to be quite dogmatic in their thinking.

The respondent’s representative outlined in a written submission their view of the incident.  The complainant entered the store without a face mask and was asked if he would like to wear one and he refused.  The assistant went behind the counter and asked the complainant if he had a any letter to support his position.  The complainant asked if he was expected to return to his car to get a letter and she confirmed that he was.  The assistant went to the security officer who advised that they contact the Gardaí.  The complainant took a video recording of the assistant and the Assistant Manger and told by the complainant that he would take legal action.  The complainant specifically took a recording of the assistant’s name badge.

The respondent’s representative outlined that the store supported their customers in a variety of ways during the pandemic.  They used on-line sales, click and collect and shopping from the door for customers who did not want to enter the store.  It was submitted on behalf of the respondent that all those options were available to the complainant.

The respondent submits that section 4(1) of S.I. 296/2020 states that: “A person shall not, without reasonable cause, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.”  Based on the complainant’s own evidence he did not meet the threshold of “reasonable excuse”.  The respondent called for security assistance as the complainant photographed and/or made a recording of an employee without their permission in her place of work.  The respondent’s representative noted that ADJ-00033635, Amanda Dobson v Mullingar Specsavers Ltd was an important decision in this regard.

The respondent’s Operations Director, Mr Inder Mohan, gave evidence of the protocols in place during the pandemic.  These included the now familiar regimes of hand sanitiser, COVID signage, floor markings, training of employees and a regular cleaning and disinfecting regimes.  Mr Mohan also gave evidence in relation to the various shopping options that were available to customers during this period.  Mr Mohan also give evidence in relation to the staff training programmes and this specifically included cleaning protocols, dealing with customers and assisting customers, risk assessment, and the process around limiting the number of persons in the shop.

As Ms X was not available the hearing was adjourned pending confirmation that she may be available.

At a resumed hearing on17/08/2022 the respondent’s representative provided an amended statement.  He also confirmed that Ms X remained on long-term sick leave and would not be available and were prepared to take direction from the WRC in relation to how the case would proceed.  It was submitted on behalf of the respondent that they could not contradict his direct evidence and could only rely on what was reported to their head office at that time.  The respondent was bound to uphold the law placed on them by the Government at that time and had rearranged its stores and trained its staff to engage with customers to discuss the range of options available to them to obtain their goods.

It was submitted on behalf of the respondent that the complainant gave evidence that his GP refused to give him a letter of exemption. Considering this and the fact that he did not provide any medical evidence to the respondent or the WRC.  In that context the complainant has not established a prima facia case of discrimination as required under the Act.

I find that the complainant has complied with the notification requirements and it is therefore appropriate for me to adjudicate on this complaint. The complaint in this case is based on the allegation that the complainant was discriminated against contrary to Section 3(1)(A) and 3(2)(f) 3(2)(g) of the Acts.  In this complaint there is a reasonable connection with the complainant’s medical condition and I find that this complaint is on the ground of age and the ground of disability.

Discrimination on the “age” ground occurs where there is less favourable treatment of one person compared to another person because one person is a different age.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (f) subject to subsection (3) that they are of different ages (the “age ground).

Discrimination on the “disability” ground occurs where there is less favourable treatment of one person compared to another person because one person has a disability and the other either is not or is a person with a different disability.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (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”).

The sections of the Equal Status Act which describe discrimination need to be outlined:

“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 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) …

As outlined above Section 3(2) sets out the grounds relevant to this case which at (f) states: “subject to subsection (3) that they are of different ages (the “age ground)” and(g) states:

“That one is a person with a disability and the other either is not or is a person with a different disability”.

The burden of proof is set out in Section 38A of the Act which provides that: “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”.

The first requirement in a case involving discrimination is that the Complainant who is claiming discrimination on the 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.  It is commonly understood that in many cases a disability will not be known or obvious.  The key provision is that in order to prosecute a claim of discrimination on the ground of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, the complainant must be able to provide evidence to support that claim.  While this can often be a sensitive and difficult area for people who have a disability, this cannot overwrite the requirements of the legislation.  The complainant in this case did not have any medical evidence that he was exempted, and he did not provide any details from a medical professional.

While the complainant in his evidence at the hearing confirmed that the wearing of a mask was difficult for him due to his medical related matters there is no basis to doubt his belief in this regard.    However, due to the lack of specific information I am satisfied that his statement does not meet any of the five definitions set out in the Act or if such a difficulty with the wearing of a mask constitutes a medical condition.  Section 2 of the Act places the responsibility for proving that he has a disability.  The complainant has failed to provide any evidence that he is suffering from a disability or provided any medical information that would satisfy the legal definition of a disability. The complainant in his evidence confirmed that he was well versed in the regulations pertaining to the wearing of face masks at that time and that he should have, at some stage, anticipated that a query would be raised with him in relation to this.

In reaching my decision I have taken into account the submissions, written and oral that were provided to me.  The following is my decision as a result of this investigation:

(a)    The complainant has failed to establish a prima facia case of discrimination on the grounds of disability or age.

The complainant was not discriminated against by the respondent on the grounds of disability contrary to Section 3(2)(c) of the Equal Status Acts, 2000 – 2015.

I find that the complainant was not discriminated against on the grounds of disability or age pursuant to Section 4 of the Equal Status Acts, 2000-2015.  The complaint is not well founded.

Discrimination.  Face Mask. Disability.