CORRECTION ORDER
ISSUED PURSUANT TO SECTION 29 OF THE EQUAL STATUS ACT 2000
This Order corrects the original Decision issued on 22/2/2022 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032622
Parties:
| Complainant | Respondent |
Parties | James Oliver Tattan | The Gresham Hotel |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043294-001 | 29/03/2021 |
Date of Adjudication Hearing: 27/08/2021
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000following 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 Complainant had arranged to meet a friend in the Respondent’s Hotel. |
Summary of Complainant’s Case:
The Complainant was upset and embarrassed as a result of an incident at the Respondent’s Hotel on 16th December 2020. He claims discrimination by the Hotel and the Hotel failed to provide him with reasonable accommodation for his disability. The Complainant was in the hotel lobby when he was asked by the Porter where was his mask. The Complainant is not required to wear a mask as he has a serious health condition which prevents him from wearing a mask and is exempt. He has submitted evidence to confirm his disability. He had a letter confirming his disability, but the hotel Porter refused to look at it. He was embarrassed as other people in the hotel were looking over. He asked the Porter three times are you putting me out of the hotel. The Complainant was upset due to what happened and didn’t want more hassle so he left. He was never offered a face shield as an alternative to wearing a mask. He left the hotel and met his friend elsewhere. He has been going to the Hotel for forty years but has not gone back. He sent an ES1 form to the Hotel on 8th January 2021 and never received any response. |
Summary of Respondent’s Case:
The Respondent’s representative appeared on behalf of the hotel. The employee involved in the incident has left the hotel and returned to another country. The employee said a gentleman came into the hotel on 16th December 2020 at around 3pm. The Respondent said the employee told the guest that he must wear a mask before entering. The guest did not produce any letter confirming a medical condition preventing him from wearing a mask. The incident took place at the height of the pandemic. The hotel’s procedure is if a guest cannot wear a mask the person is then offered a face shield. If a face shield is refused the guest cannot enter the hotel. The Hotels ES2 form said the CCTV was reviewed following receipt of the complaint and shows the Porter speaking to the Complainant. The Complainant left two minutes later. The Complainant did not produce a certificate to verify any medical condition. The Hotel CCTV is held for a certain period and the CCTV was overwritten. The Hotel confirmed they attempted to deliver their response to the ES1 on the Complainant on 29th January and 1st February 2021 by courier but they did not have an email or phone number for the Complainant. The Hotel has zero tolerance for discrimination. It was complying with health and safety protocols for the protection of guests and staff of the Hotel. |
Findings and Conclusions:
I heard and considered the submissions and evidence of the Complainant. An incident occurred at the hotel on 16th December 2020. The Complainant sent a Form ES1 to the hotel on 8th January 2021 and no response was received. This complaint was received by the Workplace Relations Commission on 29th March 2021. Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise. The Complainant claims that he was discriminated against by the Respondent on grounds of his disability in terms of Section 3 (1), S 3 (2) (g) and S4 of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities. Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (g) provides that as between any two persons, that one is a person with a disability and the other either is not or is a person with a different disability. S4 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. S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Complainant has provided medical evidence of a medical disability within the meaning of the Employment Equality Acts 1998-2015 which prevents him from wearing a mask. He was upset by what occurred and felt humiliated. He left the Respondent’s Hotel and went elsewhere for his meeting. At the time of the incident SI 296 of 2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 had been enacted which directs a responsible person to take reasonable steps to engage with persons entering certain premises to encourage compliance with mask wearing. It also states that a mask should not be required where the individual has a “reasonable excuse” which includes a disability. I appreciate the incident took place at the height of the pandemic when the Hotel were endeavouring to keep staff and guests safe and to comply with health and safety law. There is a conflict between the submission of the hotel and the Complainant’s evidence. I accept the Complainant’s evidence that he was not given the option of wearing a face-shield and felt he had no option but to leave the Hotel. I find the Respondent discriminated against the Complainant in terms of S3 2 (g) and S4 of the Equal Status Acts 2000-2015 and award the Complainant €500 for his distress and the effects of discrimination.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 the Respondent discriminated against the Complainant in terms of S3 2 (g) and S4 of the Equal Status Acts 2000-2015 and award the Complainant €500 for his distress and the effects of discrimination.
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Dated: 22/02/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Mask wearing, reasonable excuse, conflict of evidence |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032622
Parties:
| Complainant | Respondent |
Parties | James Oliver Tattan | The Gresham Hotel |
Representatives |
|
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043294-001 | 29/03/2021 |
Date of Adjudication Hearing: 27/08/2021
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000following 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 Complainant had arranged to meet a friend in the Respondent’s Hotel. |
Summary of Complainant’s Case:
The Complainant was upset and embarrassed as a result of an incident at the Respondent’s Hotel on 16th December 2020. He claims discrimination by the Hotel and the Hotel failed to provide him with reasonable accommodation for his disability. The Complainant was in the hotel lobby when he was asked by the Porter where was his mask. The Complainant is not required to wear a mask as he has a serious health condition which prevents him from wearing a mask and is exempt. He has submitted evidence to confirm his disability. He had a letter confirming his disability, but the hotel Porter refused to look at it. He was embarrassed as other people in the hotel were looking over. He asked the Porter three times are you putting me out of the hotel. The Complainant was upset due to what happened and didn’t want more hassle so he left. He was never offered a face shield as an alternative to wearing a mask. He left the hotel and met his friend elsewhere. He has been going to the Hotel for forty years but has not gone back. He sent an ES1 form to the Hotel on 8th January 2021 and never received any response. |
Summary of Respondent’s Case:
The Respondent’s representative appeared on behalf of the hotel. The employee involved in the incident has left the hotel and returned to another country. The employee said a gentleman came into the hotel on 16th December 2020 at around 3pm. The Respondent said the employee told the guest that he must wear a mask before entering. The guest did not produce any letter confirming a medical condition preventing him from wearing a mask. The incident took place at the height of the pandemic. The hotel’s procedure is if a guest cannot wear a mask the person is then offered a face shield. If a face shield is refused the guest cannot enter the hotel. The Hotels ES2 form said the CCTV was reviewed following receipt of the complaint and shows the Porter speaking to the Complainant. The Complainant left two minutes later. The Complainant did not produce a certificate to verify any medical condition. The Hotel CCTV is held for a certain period and the CCTV was overwritten. The Hotel confirmed they attempted to deliver their response to the ES1 on the Complainant on 29th January and 1st February 2021 by courier but they did not have an email or phone number for the Complainant. The Hotel has zero tolerance for discrimination. It was complying with health and safety protocols for the protection of guests and staff of the Hotel. |
Findings and Conclusions:
I heard and considered the submissions and evidence of the Complainant. An incident occurred at the hotel on 16th December 2020. The Complainant sent a Form ES1 to the hotel on 8th January 2021 and no response was received. This complaint was received by the Workplace Relations Commission on 29th March 2021. Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise. The Complainant claims that he was discriminated against by the Respondent on grounds of his disability in terms of Section 3 (1), S 3 (2) (g) and S4 of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities. Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (g) provides that as between any two persons, that one is a person with a disability and the other either is not or is a person with a different disability. S4 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. S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Complainant has provided medical evidence of a medical disability within the meaning of the Employment Equality Acts 1998-2015 which prevents him from wearing a mask. He was upset by what occurred and felt humiliated. He left the Respondent’s Hotel and went elsewhere for his meeting. At the time of the incident SI 296 of 2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 had been enacted which directs a responsible person to take reasonable steps to engage with persons entering certain premises to encourage compliance with mask wearing. It also states that a mask should not be required where the individual has a “reasonable excuse” which includes a disability. I appreciate the incident took place at the height of the pandemic when the Hotel were endeavouring to keep staff and guests safe and to comply with health and safety law. There is a conflict between the submission of the hotel and the Complainant’s evidence. I accept the Complainant’s evidence that he was not given the option of wearing a face-shield and felt he had no option but to leave the Hotel. I find the Respondent discriminated against the Complainant in terms of S3 2 (g) and S4 of the Employment Equality Acts 1998-2015 and award the Complainant €500 for his distress and the effects of discrimination.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 the Respondent discriminated against the Complainant in terms of S3 2 (g) and S4 of the Employment Equality Acts 1998-2015 and award the Complainant €500 for his distress and the effects of discrimination.
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Dated: 22/02/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Mask wearing, reasonable excuse, conflict of evidence |