Complainant

Respondent

Parties

Marie  Vaughan

B.S.C. Management Ltd.

Representatives

  Self-represented

Kevin Bell BL, instructed by

Ahern Rudden Quigley Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043685-001

21/04/2021

This case relates to an incident in a shopping centre (‘CastleWest Cork Shopping Centre’) in Co. Cork on 22/02/2021.

The Complainant, who was not wearing a face mask, entered the shopping centre.

She alleges that the events which followed constitute discrimination on grounds of disability, by the Respondent.

The Centre Manager who interacted with the Complainant is an employee of the Respondent company, B.S.C. Management Ltd.

The Respondent denies the claims.

The Complainant, Ms. Marie Vaughan, represented herself and gave evidence under oath.

On the 22/02/21, the Complainant entered the shopping centre managed by the Respondent company and used the bathroom. Upon exit from the bathroom, she was approached by Mr. Doherty, the centre manager, who she said told that she could not use the centre without a mask.  She said that she told him: ‘No, I’m exempt.’

At the hearing, the Adjudication Officer enquired as to whether the Complainant had a doctor’s letter stating an exemption. The Complainant said that she did not.

The Complainant stated that Mr. Doherty told her that wearing a face covering was the policy of the centre. The Complainant said that she told him that was ‘impossible’, as there were ‘medical exemptions.’ She said that they disagreed – that she said there were medical exemptions and he said that there were not.

The Complainant said that she had a heart and lung condition and that it was impossible for her to wear a mask. She also said that she wore glasses and that they fogged up if she wore a mask.

The Complainant expressed shock that she ‘couldn’t use the centre.’ She said that she was told she would ‘have to leave’ and that Mr. Doherty ‘motioned towards the back door, for [her] to leave.’

She said that eventually she said: ‘Okay, I’ll leave.’

After the Complainant exited the shopping centre, she filed an ES1 form, and the Respondent replied by way of ES2 form.

The Adjudication Officer enquired as to whether there was anything in either form the Complainant wished to address, as this was her opportunity to address them. The ES2 form included an allegation of aggressive behaviour by the Complainant. The Complainant simply re-iterated what she had said already.

The ES2 form at Section A, paragraph 1 & 2 stated that a visor/face shield was considered an acceptable alternative by the Respondent for a customer who could not wear a mask. The Adjudication Officer asked the Complainant, at the hearing, whether she had been offered a visor? The Complainant said that she did ‘not recall.’ She also said that a visor was ‘not possible’ for her. She said that she wore varifocal glasses and that she was conscious in relation to her balance and the risk of falling.

At the hearing, the Adjudication Officer read out paragraph 4 of section A of the ES2 form and asked the Complainant if she wished to respond. Section A, paragraph 4 reads as follows:

“Ms. Vaughan then denied the existence of Covid-19 virus and stated with an expletive that no one, including herself, had the virus. She insisted that wearing a face covering was advisory only, rather than mandatory. She then asked me for my name and position. She also asked me if I knew that she could get €16,000 from me and that she was going to sue the Centre.”

The Complainant’s response was that she was told that there were no medical exemptions, that ‘they said my medical conditions don’t matter.’ She said that the health regulations contained the word ‘distress’ which she said was ‘medical terminology’, that it meant ‘in a state of physical strain’ which she said she was, as she had ‘difficulty in breathing.’ She said that the Minister has picked that word ‘distress’ and has seen fit to give exemptions.

The Complainant said that she did not deny the existence of covid. She said that she was taking hydroxychloroquine, which she said her heart specialist had provided. She said that it had been used to ‘treat the virus in Egypt.’ She said that she knew ‘several people who had Covid; they were in hospital for two (2) weeks, and they were fine.’ She also said that she ‘took Vitamin C.’ She said that, on the day, the shopping centre were ‘refusing [her] point’ which was that she ‘didn’t have Covid.’ She said that she ‘didn’t have Covid’ and that she ‘assumed anybody else who was in the centre was also healthy.’ She said that she told Mr. Doherty: ‘Nobody here has Covid.’

In relation to the alleged threat about €16,000, she said: ‘I am an employer myself. I have a small business. I would never do anything that would cost my employer. I thought it would make him [Mr. Doherty] stop and think. I heard somewhere that that is what could be awarded - €16,000.’ She said that she ‘didn’t think he was acting in his employer’s best interests.’ She re-iterated that she ‘wanted to be allowed to use the centre.’ She said: ‘I can’t wear a face mask. I’m different medically. I’m different to everyone else – I wasn’t being allowed to use the centre because I’m different. That, to me, is discrimination.’

She said that her medical condition had been ongoing since 2017. She said the medical condition was ‘sinus tachycardia.’

The Complainant sought to enter a series of letters of referral for tests. She said that the tests were due to take place in October 2022, i.e. more than 18 months after the incident, and one month after the hearing. Only one letter pre-dated the incident (a letter dated October 2019). The Adjudication Officer allowed her to enter that letter. It was a letter of referral from her GP (dated 08/10/2019) stating that the Complainant had ‘sinus tachycardia’, which she had experienced ‘recently.’ It also stated that she did not have chest pain or shortness of breath.

Mindful that the Complainant was unrepresented, the Adjudication Officer clarified for the Complainant, at the hearing, that she had sued the Respondent under the Equal Status Act 2000, for discrimination due to disability. Therefore, the first thing the Complainant needed to show was that she had a disability at the date of the incident. The Adjudication Officer explained that if the Complainant had any evidence of her having a disability at the date of the incident, now was her opportunity to produce it; or if she had a letter of medical exemption from her doctor, this would be her opportunity to produce it too.

The Complainant said that she had health issues dating back to 2017 and that her health had deteriorated between 2017 and 2019. She said that: ‘until we had to wear face masks, I didn’t pay much attention to my own health.’ She said that: she ‘discovered in 2020, that trying to wear a mask just wasn’t possible for me…and that people accepted that it caused me severe distress, breathing difficulties etc.’ She added that, on one occasion previously while out in the local town, she had felt unwell and had attended at a local pharmacy where her blood pressure had been measured. She said that she was informed that her blood pressure was elevated, and she was told that she should see a doctor, ‘but I’ve no evidence of that either.’ The Complainant stated that ‘when Covid happened, everything stopped’, referring to medical tests etc. She said this, by way of explanation of why she had a referral letter for tests dating from October 2019 but that she was due to undergo tests in October 2022.

On cross-examination:

The Complainant was asked: ‘Has a doctor ever told you that you are medically unfit to wear a mask?’ She said: ‘No.’

She added that in 2021, she got shingles, and that ‘the doctor said it was okay for me to wear a visor when I saw him.’ She said that her glasses fogged up if she wore a mask.

She was asked whether ‘she wore the visor for the doctor’s appointment?’ She answered: ‘Yes.’

Complainant’s Closing Arguments:

After the conclusion of the cross-examination of the Respondent’s witnesses, the Adjudication Officer asked both sides for their closing comments.

The Complainant said: ‘I really don’t have a case if it’s not accepted that I have a medical condition. I was asked to leave because I wasn’t the same as the rest of them – that, to me is discrimination.’ She said that the Minister had seen fit to put a clause in legislation, and that she really didn’t have anything further to say.

She also tendered CCTV of the incident, as evidence, at this juncture. The Complainant had attempted to submit the CCTV (which she had obtained from the Respondent) twice via the WRC’s submissions system, but the system blocked receipt of it.

The Adjudication Officer asked Mr. Bell BL for his view in relation to the CCTV. He had no objection to it being viewed.

The Adjudication Officer watched the CCTV. It was 2 minutes and 43 seconds in length.

The Adjudication Officer noted aloud that she observed the Complainant, Ms. Vaughan and the Centre Manager, Mr. Doherty, and standing nearby in high viz was Mr. O’Sullivan, the Services Manager. This was confirmed by both parties to the proceedings herein.

The Complainant exited the CCTV after approximately two (2) minutes of video.

Kevin Bell BL, presenting the Respondent’s case set out that:

There is a whole body of case law as to what constitutes a disability. Not every medical condition constitutes a disability. The European Court of Justice (ECJ) has stated that it has to be a ‘significant inhibition to your participation in society.’

The burden of proof is on the Complainant.

1.       The Complainant must show that she comes within one of the protected grounds, in this case – disability.

2.       The Complainant must show that the Respondent knew about her disability and accordingly treated her less favourably than a comparator.

The Complainant has not come close to establishing that she had a disability.

1.       Establishing Disability

Mr. Bell BL stated that: ‘In this case, all we have is a GP’s letter from 16 months prior to the incident, and that is insufficient. There is no doctor appearing. There is no medical report. There are no doctor’s notes/letters/attendances from the time of the incident. Tests and appointments were postponed during the pandemic, but GPs were still seeing patients virtually and still sending letters. All we have is a letter 16 months before the incident, which said that recently she has had tachycardia; no chest pain; no shortness of breath. We don’t know the state of the Complainant’s health on the date of the incident. This is very far from the requisite proof for disability.’

2.       Establishing the Respondent’s knowledge of the Complainant’s disability.

‘It has not been established that the Respondent knew about her ‘disability.’ The Respondent treated every customer on his premises the same: He informed the Complainant of his legal requirements under the Statutory Instrument (S.I.). So, the Complainant has failed to produce prima facie evidence that she was treated less favourably than anybody else – what she is saying does not meet the evidential threshold.’

Mr Bell BL opened the Labour Courtcase of A Retail Company V A Worker, EDA2012, which sets out the evidentiary threshold in relation to establishing disability. [The case in question was taken under the Employment Equality Acts 1998-2015 (as amended)].

The Labour Court stated (at page 3):

‘It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court.

The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value.’,

and (at page 4): ‘The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question. As the Complainant has not met the burden of proof, it follows that the claim must fail.’

The Respondent called two witnesses.

First Witness for the Respondent:  Mr. John Doherty, Centre Manager gave evidence under oath.

He said that on 22/2/2021, he was ‘on duty as centre manager in Castle-West shopping centre and a female entered who I now know to be Marie Vaughan. She had no face covering’ and that he ‘made an assumption that she had forgotten to put on her face covering.’ It was his intention ‘to approach her to remind her of the government guidelines.’ He asked his colleague Johnathan O’Sullivan to come with him ‘so that I could meet with the lady, remind her of the obligations under the statutory guidelines.’ He ‘observed her enter the public toilet and [he] waited outside for her, in the mall.’ He ‘made it [his] business to approach her’ to ‘remind her.’ He said that ‘she put her arm up and said: “I’m exempt” and ‘briskly walked past me.’ He said that he ‘found her to be dismissive.’

He said that he did a ‘measured walk with her’ and that ‘she tried to forcibly go past me - push past me.’ He said that he said to her: ‘Excuse me, can I have a chat with you about the mask?’ He stated that since August 2020, masks had to be worn. He said that ‘she said it was not law.’ He said that ‘things got a little bit heated.’ He said that he ‘reminded her that it was in the interest of the safety of customers, my colleagues, patrons in the centre.’

He said that she told him: ‘I’m exempt’ and said that she ‘had issues with her chest.’

He said that he offered for her to wear a visor, stating that in his view at the time, ‘it wouldn’t have been as restrictive.’

He said her response was: ‘No, I’m not wearing a mask.’

He said that he told her that ‘it was mandatory’ and her contention was ‘it’s not the law.’ He said it was getting ‘heated’ and ‘vocal.’

He said that he became aware they were closer than (the recommended) 2 metres’ distance, so he said to her: ‘I’m standing back now’ and he stood back to allow a distance of more than 2 metres between them.

He said that at that stage, the complainant became ‘irate.’ She said: ‘I do not have Covid. There is no such thing as f***ing Covid.’

The witness said: ‘I was taken aback. My colleague was next to me.’

He said that they were close to the doors (exit/entrance) of the centre. He said that the complainant said to him: ‘Do you know I could take you for €16,000? You could get sued.’ He said to her: ‘That is your prerogative if you want to do that.’ He added that she left of her own volition.  

He added that it was a difficult time for everyone – coming out of lockdown – especially for frontline retail. He said that half the units in the shopping centre were closed. He re-iterated that it was a very difficult time for everybody. He said that he did on the day what he thought was right/had to do.

On Cross-Examination by the Complainant (litigant in person)

Q: Did you tell me that there were no medical exemptions?

A: ‘No, I did not tell you that.’

Q: I have a heart and lung condition – did you not accept that?

A: ‘Each incident is taken on its own merits.’ The witness said that it was his perception that: ‘you [the complainant] just didn’t want to wear a mask.’ ‘I wouldn’t know whether you were medically exempt without interacting with you.’

The Complainant apologised to the witness saying: ‘I’m very sorry if you thought I was dismissive.’ The witness said that he accepted her apology.

Second Witness for the Respondent – Mr. Jonathan O’Sullivan, Services Manager gave evidence on oath.

Q: You’ve heard Mr. Doherty’s evidence?  

A: ‘Yes.’

Q: Is there anything in it that you disagree with? 

A: ‘No.’

Q: Did you hear Ms. Vaughan say: “There is no such thing as f***ing Covid.”?

A: ‘Yes.’

Q: Did you hear Mr. Doherty deny that there were medical exemptions?

A: ‘No, he did not deny that there were medical exemptions.’ ‘We’ve dealt with cases of medical exemption before, e.g. an elderly gentleman who had an oxygen bottle with him. He had a card which confirmed his medical exemption.’

Q: Did Ms. Vaughan give any evidence of her medical exemption?

A: ‘No.’

Cross-examination by Complainant (litigant in person)

Q: Was I asked to produce any evidence of a medical exemption?

A: ‘No.’

Q: The man with the oxygen bottle, was his disability obvious? Was it common sense?

A: ‘Yes, it was very obvious to me. I held the door for him, helped him in the door. He approached me rather than me approaching him and showed me his card.’

Q: Do you think hidden disabilities exist?

A: ‘Yes. I’m heavily asthmatic myself.’

Closing arguments from the Respondent:

After the conclusion of the cross-examination of the Respondent’s witnesses, the Adjudication Officer asked for closing comments from both sides.

The Complainant made her closing remarks, as set out above, and the Adjudication Officer watched the CCTV tendered, as set out.

Then, the Respondent made its closing remarks.

The Respondent’s closing remarks:

Kevin Bell BL for the Respondent submitted that: The relevant legislation is the Equal Status Act 2000, rather than the regulations re: face coverings. The Complainant says that she has a medical condition, but not every medical condition is a disability. The Complainant has to prove that Mr. Doherty treated her less favourably than someone else, because of that medical condition. The Respondent was not aware of any medical condition. The Complainant was treated the same as everyone else, in line with the Statutory Instrument (S.I.) and the Respondent’s legal obligations thereunder. Even if a protected ground were established, there is no prima evidence of discriminatory intent or action.

The issue for decision by me 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, 2000-2015.

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.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: (a) 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 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.’ It requires the Complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred.

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. I am satisfied that the Respondent is providing a service within the meaning of the Equal Status Acts.

The Complainant advised the hearing that she is a person with a ‘medical condition’, which she identified as tachycardia. The Complainant also stated that she suffered from ‘distress’ and breathing difficulties at having to wear a facemask. She further said that her glasses (which are varifocal) fog up, if she wears a mask and that she had concerns in relation to her balance.

The Complainant asserts that she was treated less favourably on the grounds of her disability. The Complainant is thus required to demonstrate that a prima facie case of discrimination exists.

Having carefully examined all of the evidence heard, I am satisfied that no medical evidence of any disability, was provided either at the hearing, or to the Respondent at the material time; that the conditions the Complainant described do not constitute a disability within the meaning of the Act; and, furthermore, it therefore follows, that the Respondent was not on notice of any disability. Rather, the Complainant made an unsubstantiated assertion that she was exempt from wearing a mask. In such circumstances I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability.  

In addition, based on the oral evidence heard, I found the Respondent staff who attended the hearing to give testimony, very polite and respectful. Mr. Doherty, the Centre Manager highlighted his utmost concern was that of the protection of customers and staff in the context of the Covid-19 pandemic. On the balance of probabilities, I prefer the evidence of the Respondent’s witnesses over the evidence of the Complainant.

Having carefully examined all the evidence adduced herein, I find that the Complainant has failed to provide evidence in support of her assertion that she was treated less favourably by the Respondent on grounds of a disability. In fact, I find the exact opposite to have been the case – the Complainant was treated exactly the same as everybody else. She was seeking special treatment – she was seeking an exemption but she had no basis for, and she provided no basis (either to the Respondent on the day of the incident, or at the hearing) for, the special treatment sought.

I also find that the CCTV entered into evidence by the Complainant goes to support the Respondent’s version of events and not the Complainant’s. Of note, is the fact that the Complainant’s body language is highly animated, in the video.

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.

In accordance with s. 25(4) of the Equal Status Acts, 2000 to 2015, I find that the Complainant was not discriminated against by the Respondent on grounds of disability contrary to section 3 of the Equal Status Acts, 2000-2015.

Facemask; Equal Status; Disability;