ADJ-00034652

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034652

Parties:

	Complainant	Respondent
Parties	Eilis Ronan	A. O'Gorman & Company Limited trading as O'Gorman’s Supervalu

Representatives

In person

Michelle Loughnane Mullany Walsh Maxwells LLP/ MW Legal.ie

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00045539-001	04/08/2021

Date of Adjudication Hearing: 13/07/2022

Workplace Relations Commission Adjudication Officer: Emile Daly

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 complaint is discrimination on grounds of disability/ failure to make reasonable accommodation for the Complainant’s disability in circumstances where it is alleged that the Complainant was refused good and services in a retail premises on 5. 2. 2021 on the basis that she refused to wear a face mask during Covid restrictions.

Summary of Complainant’s Case:

Under affirmation the Complainant gave evidence as follows:

On 5 February 2021 the Complainant attended the Respondent retail premises in Carrickmacross, Co. Monaghan to shop when the shop owner, Mr. O’Gorman approached the Complainant and requested the Complainant to leave because she was not wearing a face mask. The Complainant told Mr. O’Gorman that she was exempt, but he was not interested in listening to details of her reasonable excuse. He replied that the shop was operating a no mask no entry policy and he took the Complainant’s basket. He offered to serve the Complainant outside, to which she replied no.

In terms of the preliminary jurisdictional application raised by the Respondent, that no ES1 form had been received by the Respondent, the Complainant stated that she wrote an email to the Respondent on 9.2.21 seeking information as to why she had not been served in the shop and received no reply and said that she intended to pursue the matter. On 28.3.22 she also sent a completed ES 1 form by way of registered post to the Respondent but did not keep a copy and she lost receipt when she moved house. As a result she was unable to prove that the ES1 form was sent. Instead, she was relying on the content of the email of 9.2.21 as this included all the content that was required in an ES 1 form.

The Complainant was cross examined.

It was put to her that at no stage had she disclosed what her disability was. The Complainant replied that she was not obliged to, but that it was distress and anxiety as a result of wearing a mask.

When she was asked for proof of this disability, she accepted that she had no proof and that her doctor would not provide a certificate.

The Complainant said that under SI 296/2020 she was not obliged to show proof of disability and was able to rely on section 5 (a) (2) of the statutory instrument, that she had a reasonable excuse not to wear a mask, which was severe distress if she wore a mask. Also Mr. O’Gorman got annoyed at her in the shop and there was no opportunity to discuss her disability with him, he was not interested.

The Complainant said that the discriminatory breach was the refusal to serve her in the shop and his offer to serve her outside the shop did not make up for that.

It was put to the Complainant that the version of events that will be provided by Mr. O’Gorman is very different to evidence she gave and that her approached her politely, which the Complainant disagreed with. It was put to her that Mr. O’Gorman informed her that she needed to wear a mask, which the Complainant disagreed with, she stated that Mr. O’Gorman was stressed and annoyed and took the shopping basket off her.

It was put to her that she had a political (anti-mask) position before this event took place and had posted various messages on social media outlets which proved her anti-mask stance, which the Complainant denied. The social media postings were then shown to the Complainant and she did not deny making the comments therein.

Summary of Respondent’s Case:

Under affirmation the Respondent gave the following evidence

The Complainant came into his shop of 5.2.2021 and was not wearing a mask. This was at a significant and serious time, in the middle of the second wave of Covid 19 and the wearing of face masks was obligatory.

The Respondent approached the Complainant. He asked that she put on a mask and told her that she was obliged to. He was apologetic to her as this was an uncomfortable thing to have to do. He offered to do the shopping for her. He did not say that the shop ran a no-mask-no entry policy and he did not take her basket off her. The whole interaction lasted about one minute. She did say that she was exempt but not on what basis. He suggested that he give her a list and he would do the shopping for her, but she declined that offer and left the shop.

The Respondent considered that he had no choice at that time other than to ask her to wear a mask. He needed to protect his staff and other customers and as far as her was concerned he was obliged to ask her to wear a mask. There were some other customers who had given notice of their disability and inability to wear a mask and in respect of those customers, alternative shopping arrangements were reached. His business operates with a keen awareness of customers with disability. It is wheelchair-regulation-compliant and operates an evening-low-light/no-music slot for customers with ASD.

Having been shown the email dated 9.2.2021 he accepts that the Complainant sent an email to him but he did not see it.

The Respondent was cross examined as follows:

It was put to him that her assertion that she was medically exempt was just ignored by him, which he disagreed with. The Respondent replied that as he understood it the Covid rules of mask wearing in retail premises were mandatory and he was merely giving effect to the rules that were in place at that time.

Findings and Conclusions:

Preliminary Application

With respect to the Respondent’s application that this Adjudicator has no jurisdiction to hear this complaint due to the failure by the Complainant to prove that an ES1 form was served on the Respondent within two months of the alleged breach, I am satisfied that the email dated 9.2.2021 was sent to the Respondent by the Complainant and while he did not see this email the content of this email meets the requirements of an ES1 form and I am satisfied that I have jurisdiction to hear this complaint.

Substantive Findings and Conclusions

The issue to be determined in this decision is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2021 and/or whether the Respondent failed to provide the Complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

The Law

Was Respondent providing a service?

It is agreed that the Respondent, at the time of the alleged breach was providing a service within the meaning of the Equal Status Acts.

Discrimination / Reasonable Accommodation

Section 3(1) of the Equal Status Acts 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 that the burden of proof which is: "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."

This section requires the Complainant to establish, in the first instance, facts upon which she can rely to assert that the prohibited conduct occurred ie 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.

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….”.

Application of law to the facts

The Complainant gave evidence that she is a person with a disability. Her disability is anxiety and that it is triggered by her face being covered by a mask. She relies on SI 296/2020 which allows her not to wear a face mask if to do so would cause her distress.

The Complainant did not provide evidence of a disability at the Adjudication hearing.

In addition to being satisfied that the Complainant suffers from a disability, it also must be proved by the Complainant that the Respondent was aware of such disability at the time of the alleged breach and that the Respondent treated the Complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability.

The Respondent gave evidence that the Complainant did not advise him of any disability at the time of the alleged breach. When questioned on this the Complainant stated that she did not believe that she had to provide any basis for the exemption, other than to state that she had a reasonable excuse for not wearing a mask. This protection is provided by SI 296/2020. She also stated that the Respondent was not interested in her explanation that she was exempt and did not ask for any evidence upon which she claimed to be exempt.

It is accepted by the Complainant therefore that she is unable to prove that the Respondent knew of her disability at the time of the alleged breach.

In a discrimination complaint the Complainant is required to demonstrate that a prima facie case of discrimination exists.

In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

I find that the Complainant in this case has provided no evidence/documentation in relation to her disability upon which the Adjudicator could reach a finding that she is a person with a disability.

I find that the Complainant has failed to provide evidence to show that the Respondent was aware of this disability at the time of the alleged breach.

I find that the Complainant has failed to evidence her assertion that she was treated less favourably by the Respondent on grounds of a disability or that the Respondent failed to provide her with reasonable accommodation for such disability.

In such circumstances I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability.

Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability.

As I have observed in other similar Adjudication decisions (Adj 32776 and Adj 33208) at the heart of this complaint a wrongful conflation of two issues has been made. It is worth re-stating that one does not necessarily flow from the other.

A defence may be available under SI 296/2020 (if a person can show they had a disability or had another form of reasonable excuse) if a charge for breaching Covid rules, by not wearing a mask indoors, is made against them. If such a breach was found fines could be imposed by the gardai, for example. But if in response to such a charge the person was able to show that they had a reasonable excuse for not wearing a mask, this could be a valid defence to the charge.

That situation however should not be conflated with an assertion that where a shop owner requires a customer to wear a mask in a shop and that person asserts that they have a reasonable excuse, that the shop owner’s insistence that a mask is worn, necessarily amounts to discrimination unless all the criteria for discrimination are also met. For reasons identified above I find that all the necessary criteria to prove discrimination on grounds of disability were not met by the Complainant arising from what occurred on 5.2.2021 in the Respondent’s shop and at the Adjudication hearing.

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.

I find that this complaint is not well founded

Dated: 11-08-2022

Workplace Relations Commission Adjudication Officer: Emile Daly

Key Words:

Equal Status – face masks – SI 296/2020