Complainant

Respondent

Parties

Leo  O’Neill

B&Q Retailing Ireland Limited

Representatives

Deirdre O'Neill

Miley & Miley Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042751-001

28/02/2021

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

CA-00042908-001

05/03/2021

The complainant contends that he was discriminated against on the basis of his disability contrary to the provisions of the Equal Status Acts 200-2018, when shopping at the respondent’s store on the 26 January 2021, the date of the last instance of discrimination.

He submitted his complaint to the WRC on the 28 February 2021.

 CA-00042751-001 Complaint under Section 21 Equal Status Act, 2000.

 The complainant submits that respondent treated him less favourably than another person without a disability or with a different disability in a comparable situation.   He also submits that the respondent failed to provide reasonable accommodation and that he was harassed on the ground of his disability.

Complainant’s evidence

The complainant went to purchase seating in the respondent’s shop on the 26 January 2021 and was impeded in this exercise. He was not wearing a face mask as he finds it difficult to wear one and believes he is exempt from wearing one on the basis of S.1 296/2020.

He did not notice any door marshal at the door, as alleged, nor did he hear anyone trying to interrupt his passage into the shop. Once inside, he heard a staff member shouting at him, “where is your mask”, to which the complainant responded that that he could not wear a mask and he was exempt. The customer advisor requested him to show evidence of exemption. He did not do so as he believes that S.1 296/2020 does not require disclosure of medical evidence.

Another staff member told him that he would be fined for refusing to wear a mask. A staff member from the front of the shop came down and stated to the customer advisor to call the police. His wife accompanying him wore a face covering.

The complainant states that he was verbally attacked by the respondent’s staff. He had not expected this terrible treatment and did not plan to make a complaint.

 While the manager offered to get him whatever seat he was shopping for, the complainant wanted to see what type of seats were on sale. The manager then asked him to leave the shop. The complainant found the incident to be very distressing and traumatic.

Cross examination of complainant.

Contrary to the respondent’s statemen and letter of April 2021, he told the respondent staff that he was exempt. The first person to whom he said that said,’’ show me the proof”.

He confirmed that he returned to the shop the next day, the 27 January. He explained the previous day’s events to the Assistant Manager to whom he offered medical evidence of his exemption. But the Assistant Manager at the door said that he did not require it. In order to proceed into the shop.

To the question that there was no issue with his wife shopping in the store as she had a face covering on, the complainant stated that she was not invited to proceed with her shopping.

The complainant denies that he was confrontational

Upon questioning by the adjudicator as to what his disability was, he explained that he got distressed when he wore a mask, that he can sometimes become breathless and that these responses stem from something that happened in his childhood. When asked, he advised that he had no medical verification of this condition nor any letter recommending that he should not wear a mask. He advised that he has not sought or required any treatment for his condition

Witness 2. Complainant’s wife and representative.

The witness confirmed that she filmed the respondent manager’s request to them to leave the premises incident on the phone.

Cross examination of the witness.

When asked why she took a video in the face of the respondent advising her that he did not consent to this, she stated that the behaviour of the respondent staff frightened her. She denied that she was recording it for evidence. She confirmed that her remark to staff, “don’t believe everything you hear on television “referred to Covid-19 but to other matters also.

Failure to provide reasonable accommodation.

The complainant states that reasonable accommodation means that the respondent should have dispensed with the requirement for him to wear a mask in their store.

Harassment on the grounds of disability.

He was harassed by the way the female member stated that she would call the police.

 CA-00042908-001. Complaint under Section 21 Equal Status Act, 2000.

The complainant withdrew this complaint.

The respondent requested that the name of the respondent would be corrected. This is reflected in the decision.

The respondent objected to any reliance on the video clip, which the complainant submitted in advance of the hearing. Without prejudice to that position, the respondent noted that it was an extract of the episode and not the entire event. It omits to film the complainant speaking aggressively to the staff in the respondent’s store.

The respondent denies that any discrimination occurred. The complainant entered the shop without a mask.  He did not advise anyone that he had an exemption.  The respondent was complying with government guidelines. The respondent has staff with medical conditions and must protect their health as well as the customers’ health.

The respondent takes disability very seriously and implemented a scheme in its stores to assist customers with disabilities.

Witness I. Door marshal.

He is a customer advisor for nearly two years.

On 26 January,2021, the complainant entered the shop without a mask. The witness asked him if he had forgotten his mask as per company policy. It is not his job to seek proof of exemptions. The complainant and his wife ignored him and proceeded on their journey into the shop.

Witness 2. Customer advisor.

He noticed the complainant without a mask. He did not know he had been already approached by the door marshal. He asked him if he had a mask. The complainant said no. The complainant never mentioned an exemption. The witness called senior management because the complainant was aggressive in tone. One of the female staff joined the scene. He has no recollection of her saying “call the police”. She was not aggressive

Witness 3. Deputy Manager.

He came at the back end of the incident. The complainant was getting out of control; he was loud and agitated; customers and staff could witness the incident.

Cross examination of witness.

The video clip submitted by the complainant is only a snippet of the entire episode.

He confirmed that it was the complainant’s wife who first stated that she was leaving the store. She started to video at that point. He told her that she did not have permission to video.

He confirmed that he asked the complainant to leave the store because of his aggressive behaviour.

Witness 4. Floor Manager

On 27 January, he met the complainant who had returned to the store, requesting to speak to the manager. The complainant explained the incident of the previous day.  The witness apologised to the complainant. He told the complainant that he would take his word that he was medically exempt and invited him to shop in the store.  The witness expressed displeasure at being told by the complainant that he had filmed the incident. The complainant told the witness that he should not believe everything that he hears on television. The complainant told the witness that he was taking the matter further, that he had been discriminated against.

The witness did not conduct an investigation as the complainant stated that he was taking the matter further.

The respondent submits that the was not treated less favourably than a person without a disability or a different disability.  He was not denied reasonable accommodation; in fact, the manager offered to get the items for him and was agreeable to his wife continuing to shop, The following day, when he stated he was in possession of a medical exemption, he was invited to shop. The staff were not on notice of a disability on the 26 January.

He has no medical evidence to support his claim that he has a disability. The respondent relies on Anthony Lyttle v Buy wise Stores ADJ 00032493, and Slawomir Tompalski v T’ O Higgins and Company Limited, ADJ 32638 which found that the absence of medical evidence concerning the disability was fatal to their complaints and in the latter case, the disability was contested. The adjudicators found against the complainants in both cases.

The respondent in the instant case contests the fact of disability, contests the claim that the complainant notified the respondent of his exemption and disability on the 26 January, and asks the adjudicator to apply the decisions cited as they are a replica of the current situation.

The respondent states that the complaint is opportunistic and mischievous and should be dismissed.

CA-00042751-001 Complaint under Section 21 Equal Status Act, 2000.

The matter for 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, 2000-2018 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

Relevant Law

Section 5(1) of Act provides as follows:

 “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.” 

I am satisfied that the respondent is disposing of goods to the public within the meaning of section 2 of the Equal Status Acts 2000-2018.

The complainant fulfilled his obligations to notify the respondent within the required time limits set out in Section 21(2) of Acts.

 Burden of proof.

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.

In Hallinan v. Moy Valley Resources DEC-S2008-25,a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

The first task is to determine if the requirement to wear a mask constitutes a prima facie case of discrimination. Is it indirectly discriminatory in the sense that accessing the respondent’s goods was dependant on complying with a rule, applied across the board, but which could disproportionately disadvantage persons with a disability?  As a preliminary, it is necessary to establish if the complainant is covered by the protected ground of disability. 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….”.

The disability is contested. It is a self-declared disability unsupported by medical evidence. The complainant’s description of his condition -distress and sometimes breathlessness on having to wear a mask, (a response that stems from an incident in his childhood) -a condition for which he has neither sought nor received the benefit of medical attention, does not match the definition of disability set out in section 2 of the Act. Compliance with this statutory definition is a condition precedent to triggering the protection from discrimination found in section 5 of the Act. Proving a protected characteristic or membership of a protected group is the first limb of the three pronged exercise designed to establish a prima facie case of discrimination and as set out in Hallinan v. Moy Valley Resources DEC-S2008-25. Without that proof of a protected characteristic, a prima facie case cannot be established.

In addition to being satisfied that the complainant suffers from a disability, and for completeness, I must also be satisfied that the respondent was aware of such disability and that the respondent in possession of that knowledge treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such a disability. The complainant admits that he provided no medical evidence of a disability believing it to be unnecessary. The Equality Officer in A Complainant v A Supermarket DEC -S2010-013 in upholding the obligation to inform the respondent, stated

“I am also satisfied that the complainant has established that a person who became reasonably acquainted with him, but who hadn't been told by him directly that he had a disability, nonetheless might reasonably become aware of his disability over time, through observation and/or inquiry of third parties. Conversely, I am satisfied, based on all the evidence presented to me regarding the present complaint that, in general, a person whose contact with the complainant was infrequent and/or only in passing would not necessarily conclude that he had a disability. I also note that, while the complainant did not keep his disability a secret, equally he did not advertise it widely.” 

Based on the evidence, the complainant has not raised a prima facie case of discrimination and his complaint of discrimination on grounds of disability cannot succeed.

Failure to provide reasonable accommodation

Failure to provide reasonable accommodation is defined in section 4 of the Equal Status as follows:

“(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 entitlement to reasonable accommodation is contingent upon the person having a disability within the meaning of section 2 of the Equal Status Acts. As I have found that the complainant does not have a disability within the meaning of section 2 of the Acts, I do not find that the respondent discriminated against him contrary to section 4 of the Equal Status Acts.

Complaint of harassment of the grounds of disability.

The complainant refers to the remarks made to call the police, and to the fact that he was told he would be fined as evidence of harassment.

Section 11 (5) (a) of the Acts defines harassment as

 (i)          references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds.”

The complainant submits that the harassment, which in any event was contested, related to his disability.  The entitlement to freedom from harassment in the accessing of goods and services is contingent upon the person having a disability within the meaning of section 2 of the Equal Status Acts. As I have found that the complainant does not have a disability in compliance with section 2 of the Acts, I cannot find that the respondent harassed the complainant.

I do not find that the complainant was discriminated against or harassed by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015.

I do not find that the complainant was discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability.

Covid mask wearing: Self-declared disability; No prima facie evidence of discrimination