Complainant

Respondent

Parties

Ronald  Vos

Murrays Spar

Representatives

  Complainant Represented himself

 Niall Murray

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048510-001

07/02/2022

This case is concerned with a complaint that the Complainant was subjected to discriminatory treatment when he was refused an exemption from wearing a mask on medical grounds when he was shopping at the Respondents premises on specified dates during the Covid 19 pandemic. His claim is that as he has a disability and offered medical evidence of that disability. he should have received a reasonable accommodation i.e., that he should not have been required to wear a mask on grounds of that disability.

The Complainant said that it was sad that this had to come to all of this, that on many occasions he had been to the Respondent’s shop, and he had found the staff and Mr M very polite, that there was no problem with them. He described Mrs M jumping in when another sales assistant would go to serve him saying that she would serve that man making him very uncomfortable. He had a letter from his doctor, and he had a video for some of the dates which he referenced in his complaint. He said that he had informed Mrs M. many times that there was no point in asking him to wear a mask, that he was exempt, that he had a letter outlining in his conditions from his GP. Mrs M would not take the envelope containing his letter and had replied that she did not care about the law, this was her shop, shouting at him in front of others. He submitted that she should have taken the opportunity to speak to him, to read the documentation but she made it very clear that it was her shop. She accused the Complainant of bullying, especially women and bullying her and said that he would not bully her husband if he were there. He said that he found the attitude on the mask wearing very unhelpful, that it was very stressful for him, that he gave Mrs M. the opportunity to read the document, but she refused; that other staff were ready to serve him, but she would butt in. Asked about the dates on which the alleged incidents occurred he gave the following:

17.09.2021 – V

16.10.2021 – V

07.11.2021

13.11.2021 – V (twice on this day, a.m. and p.m.)

V = video recording on his phone

He stated that when he found that the Respondent was very unhelpful, he started videoing what was being said on his phone.

On 13.11.2021 he completed an ES1 Form and submitted it to the Respondent but received no reply. He said that he was told that if he was not wearing a face mask, he should go somewhere else (to do his shopping). In response to a query from the Chair, he advised he did not have a copy with him of the document which he had in the envelope and was refused by the Respondent. He was advised that this document was to be provided, and then he explained that one was a medical report, and the other was the rules around the wearing of masks. In response to the Chair, the Complainant stated that his claim was that he had a disability and that he was not provided with a reasonable accommodation of not wearing a mask and that the reasonable accommodation which should have been provided to him was that he should not have had to wear a mask.

In response to the Complainant representative when asked had he been served outside of the shop, the Complainant stated that he has a disabled person’s permit. On two occasions a member of staff served him outside the shop. Those occasions occurred because he saw a member of staff and asked her to help him as he had difficulty getting out of the car due to sciatica at the time. He was never offered service outside of the shop. It was he who asked for that service.

In response to the Respondent question had he been offered a visor to wear instead of a mask, the Complainant stated that he could not wear a visor due to mental health issues which he did not want to elaborate on at the hearing and because the wearing of the visor made him uncomfortable. The Complainant said that he believed that a person with mental health issues was also exempt from wearing a mask as per the legislation referring to the 1945. The Complainant said he was not asked why he would not wear a visor, that on one occasion Mrs M had said I bought you a present, meaning a visor. Again, he said he was never offered service outside of the shop and that his view is that he has every right just like anyone else to go into a shop once he was physically able to do so without wearing a mask as he was exempted. It never crossed his mind to seek service outside the shop. He only took the opportunity when a member of staff was nearby, and he was in a lot of pain. Asked by the Chair if he had disclosed the mental health issues within the documentation offered to Mrs M, he replied, no. At the conclusion of the hearing the Complainant provided a letter concerning his own historical health issues and vulnerabilities. Asked of the relevance to the case in hand, he explained that he had found this situation very stressful, and it had an impact on him. He stated he was not a bully, he was a fair person, he was very polite, and he was really upset and hurt by what had happened.

In the circumstances he felt he was entitled to some compensation for the discrimination and the impact of the Respondents treatment of him.

The position of the Respondent as outlined is that there was no discrimination and no victimisation towards the Respondent. The owners of the shop were strictly adhering to the public guidelines regarding mask wearing. The reasonable accommodation was offered to the Complainant in that on a couple of occasions he was served outside of the shop. This facility was available to all customers and availed of by a number of people. The owners of the shop have their own health conditions and the staff were very concerned about Covid and are still wearing masks themselves to this day. On a number of occasions, the Complainant was asked to wear a mask and said that he could not do so. As another reasonable accommodation he was then offered a visor, and this was refused. The Respondent representative referred to COPD and advice that a visor could be worn. Other customers including people with health conditions wore masks in the shop, and if they did not wear one, they were offered one. Some would say that they had forgotten them, others would take the mask and others would wear a visor. The Complainant was not treated any differently than any other customer who was not wearing a mask. It was submitted that if the Complainant had a health issue which he was concerned about then it was not understood why he would demand to be served in the shop when he could have been served outside. It simply was not adding up. The Respondent representative confirmed that there was no reply to the ES1 Form of 13th November 2021. He also noted that the only date referenced on the complaint form was 13th November 2021.

Witness Evidence Mrs M

Mrs M gave evidence that the younger people in the store were frightened of the Complainant and that they found him aggressive, he was demanding to be served (when not wearing a mask). She said that when the Complainant was asked to wear a mask and told that you have to wear one, he waved an envelope and came very close to her in an area which did not have a Perspex screen and she replied that she did not want to see it, she wasn’t going to get involved with it. She told him he could get served outside. He had hooted his horn for service a couple of times. She had asked everyone who was not wearing a mask to wear one. She offered him a visor in a box, and he threw it back at her. She did not ask him for an explanation as to why he would not wear the visor. She did not ask any questions of him. In response to the Complainant, she stated that she had not viewed any CCTV coverage of the exchanges. Asked by the Complainant did he tell her it was a letter from his doctor, she replied that he had said that he was exempt and waved the envelope and she had no idea what was in the envelope. Asked by the Complainant did she say that she did not care about the letter, that she was not serving him without a mask, she replied that she had no idea what she had said (at the time). Asked by the Complainant did she accept that he was always friendly and polite to staff, she replied that she did not think so because otherwise they would not have come to her about him. She said she did not get a letter; he waved an envelope.

Asked by the Chair whether she was aware that the guidelines did allow for some exemptions, she replied that she was not really familiar with the guidelines.

Asked by the Chair was she aware that the Complainant had a disability, that he had used the disabled parking spot, she said that she had not seen him park there. Asked why they had not replied to the ES1 Form, she stated that she did not realise she had to reply, and she thought her husband had written something. Asked by the Chair if there was there a notice in the shop that any person could be served outside she replied, no. It was put to her that the Complainant had referenced a number of dates when there were exchanges around his not wearing a mask and would she agree that this had happened on a number of occasions, and she replied yes it happened on several occasions but that he only waved the envelope once. Asked if she had ever refused to serve him, she said no, he was always served, she would always serve him.

Witness 2 – CK-shop assistant at Murrays

Asked if she had served the Complainant outside the shop (during Covid restrictions), she replied yes, that she had served him on two occasions. On the first occasion she was serving someone, and she heard beeping and was told that someone outside had needed help. She went outside where the Complainant was parked in the disabled spot, and he told her that he had COPD and would she mind getting him a few messages. She said she had no problem and she recalled getting milk and Hermesetas for him. She served him and he left. He came into the shop after that on another occasion and got what he wanted. He then came again another day where he beeped the horn and he asked to be served. She said that they often serve customers outside and still do it for elderly people, it is not just Covid. She stated that they were very strict that all customers should wear a mask and most people would wear them. They have a lot of young people working in the shop, students who have to deal with all sorts of things or young people who get nervous, and the Murrays then help them with those situations, the owners are in the shop seven days a week and they take the lead when there is a difficulty.

In response to the representative, she said that she saw Mrs Murray ask the Complainant to wear a mask and offer him to be served outside. She said that he was not aggressive, that he would say loudly I know the law, I know my rights. He was offered a visor. She knew about a letter and saw him waving an envelope – she saw that. Asked how long the standoff as it was described would last, she said 30 seconds to a minute. She said everyone was asked to wear a mask and some people chose to leave (rather than wear a mask).

Asked by the Chair what guidelines the staff received regarding exemptions, she said she was aware there were exemptions, everyone had to wear a mask or ring in or be served outside or phone in and goods would be left on their doorsteps. Asked by the Chair if she accepted that the Complainant informed her that he had COPD, she replied yes, and did she accept that that was a chronic illness, she said yes. And had she informed Mrs Murray that he had this condition, and she said that she may have mentioned it to her. At that point the Chair asked Mrs Murray whether she was made aware that the Complainant had COPD, she replied yes now she heard the evidence (of CK), she accepted she had been told and she also accepted that COPD was a disability.

In this case, I am satisfied that the account of the Complainant was both accurate and credible based not only on his own evidence but that of both witnesses for the Respondent.

Relevant provisions of the Equal Status Act 2000 as amended. The dates and frequency of interactions set out by the Complainant at the hearing are therefore not disputed. I am also satisfied that the Complainant tried to offer medical evidence on at least one occasion to support his claim that he should be exempted from wearing a mask, the form of reasonable accommodation he sought and felt entitled to. That the Complainant has a disability or disabilities is accepted on his own evidence to the hearing and on his evidence to the witness CK as recounted by her to the hearing. At the very least the Respondent was aware that the Complainant had COPD as a disability. In summary, the Complainant in this case has provided evidence of a disability which could impinge on his ability to wear a mask, and or could provide the basis for a refusal to wear a mask and to claim an exemption. The Complainant did both reveal the nature of that disability to the member of staff who served him outside the premises and also offered medical evidence of his disabilities to the Respondent. For the purposes of deciding this case therefore the Complainant is classified as a person with a disability in accordance with Section 3-(1)(ii) below.

(g) below is the protected ground which applies to the Complainant.

Discrimination (general).

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’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Protected Grounds

(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”),

          Reasonable Accommodation

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

Turning to the complaint is that the Respondent failed to provide the person with the disability with a reasonable accommodation, section 4(1) applies in this case.

The first point of note is that it is clear from the witness evidence that in respect of wearing or not wearing masks or as an alternative, a visor, the Respondent was not applying a policy which allowed for an exemption from wearing a mask altogether notwithstanding the provisions of the operating statute at the time. In other words, by refusing to engage with the Complainant on the contents of his envelope and in insisting that he or any other person wishing to be served must wear a face covering, the Respondent was not open to recognising that a disability may have formed a genuine basis for not wearing a face covering. The reasoning here was clear, a genuine concern for her staff and also for herself and her husband who have underlying medical conditions which evidently were a great concern to them. Ironically therefore the Respondents were concerned about their own disability but not willing to engage in dialogue with the concerns of the Complainant around his disabilities. This could and should have been done in a non-confrontational manner. The refusal of the Respondent witness to try to appreciate the position of the Complainant and to even examine the contents of the envelope when offered, do not reflect well on the Respondents.

The implied criticism of the Respondent; the acceptance that the Complainant has a disability and notified that disability to the Respondent through a staff member and offered additional supporting medical evidence notwithstanding, the issue to be decided is the complaint that the Respondent acted in breach of section 4(1) of the Equal Status Act which is worth displaying again at this point.

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

The first accommodation offered by the respondent was a visor provided by the Respondent which he refused to wear. His reasoning at the hearing related to the mental health issues which were not however referenced in the document in the envelope offered to the Respondent. So, she had no medical explanation available or offered as to why he would not wear the visor-he simply rejected that accommodation.

The second accommodation was the facility of collecting shopping by being served outside the door in the disabled persons car space for which he had a pass. It is regrettable that the Respondent did not post a sign that such an arrangement was available for anyone who had a disability and could not wear a mask. And I am not satisfied that as part of the exchanges between the witness Mrs M and the Complainant that such an option was offered to him. However, the Complainant was aware that this accommodation was available-quite simply because he used it when it suited him-on two separate occasions. Accepting that one has to be careful about stigmatising disability in such a way that those with a disability are treated less favourably or differently in a lesser fashion, the availability of this personal service ensured that it was neither impossible or unduly difficult for the Complainant to availhimself of the service. All he had to do, and had done, was beep the horn and a member of staff would come from the shop and provide a personal delivery service to his car.

The Complainant considers that it was only his accommodation which should have been offered on the basis that an exemption could have been provided. That is the not case under the Equal Status Act-the proposed accommodations of the disability are to be judged as to whether they were reasonable in all the circumstances.

The accommodations relied upon by the Respondent have been analysed on the basis of the evidence at the hearing. Ultimately, whatever the views about the different accommodations claimed by the Respondent, the key point in their defence is that the Complainant was always served and by Mrs Murray, notwithstanding her reservations. She may not have been friendly about it to the point where the Complainant found her attitude offensive and to do so she obviously did cut across other staff to serve the Complainant herself, but the Complainant was fully accommodated, was served and was not discriminated against by a failure to provide a reasonable accommodation as defined in section 4(1) of the Equal Status Act 2000 as amended. It was never made impossible or unduly difficult for him to avail of the services bya refusal or a failure [of the Respondent] todoall that was reasonably possible to accommodate the needs of a person with a disability-[the Complainant].

For the sake of completeness, the Complainant provided no evidence that he was victimised in any way for pursuing his rights under the Equal Status Act 20

CA-48510 The complaint brought by Ronald Vos against Murrays Spar is not well founded.

Discrimination Complaint/Failure to provide reasonable accommodation