ADJ-00034182

Complainant

Respondent

Parties

Marguerite  Kinsella

Manor Forecourts Ltd t/a Gala

Representatives

Paul Kinsella

 Graham Murphy

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045006-001

02/07/2021

The complainant was represented by her husband who gave sworn evidence in the form of an oath, summarised as follows:

The complainant went into the service station to buy an item or items on 31st March 2021.  She was not wearing a mask as she is exempt under Statutory Instrument S.I. 296 as she has a number of medical conditions which means that she cannot wear a face covering / mask.  She was told by the manager that she would not be served if she came in without a mask.  This upset the complainant greatly and her husband then went into the station to speak to the manager.   The manager came out after some time passed.  The complainant’s husband videoed the conversation. When the complainant’s husband told the manager about Statutory Instrument 296, he said he did not know about that and all he knew was the station had a policy in relation to mask wearing.  The husband of the complainant stated to the hearing that the complaint was taken as the complainant was told she would not be served if she did not wear a mask and she would not be served in future if she did not wear a mask.  It was stated that in summary, she was discriminated against and the signage stating “no mask, no entry” was discriminatory against persons who could avail of S.I. 296.

The respondent gave evidence following the taking of an affirmation.  He stated that the manager was no longer in the employment.  However, he had provided an account of what happened on the evening of the incident.  In summary, the lady was not refused service, she had purchased a magazine.  It is argued that the shop was in compliance with Government guidelines at all times during the Pandemic Covid 19.  The manager considers each situation on a case by case basis, and as far as the manager was concerned, the conversation was amicable and the complainant left the shop having been provided with a service in the form of purchasing a magazine.   

The issue for decision by me is, whether or not the respondent refused the provision of goods and services to the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.

The applicable law

Section 5 of the Act provides:

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.”

Section 3(1) of the Equal Status Act 2000 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”),

The burden of proof

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred, referred to as a ‘prima facie’ case.   It is only where such a ‘prima facie’ case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  The issue for consideration in the instant case is whether the Complainant was refused service at the Respondent’s station and shop on the date in question on the grounds of her disability contrary to the Equal Status Acts. In order to establish a prima facie case, the Complainant must satisfy three criteria in relation to her complaints.

She must (1) establish she is covered by a discriminatory ground (in this case the disability ground); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances.

In this case, it was not disputed that the Complainant has a disability and evidence was given by her husband that she showed her inhaler to the manager in the shop on the day of the incident, thus satisfying the first of the criteria outlined above.  In relation to the second criteria, the evidence is that the complainant was actually served and made a purchase on the day.  I find that on the day in question, the respondent did not refuse to dispose goods to the complainant.  In the circumstances I am satisfied that the complainant has failed to establish a prima facie case, that is the establishment of primary facts from which it can be inferred that she was discriminated against, of discrimination on grounds of disability.   Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability.  

Equal Status Acts, mask issue, not upheld.