Complainant

Respondent

Parties

John P  Collins

Dalemill Ltd Kilcohan Stores

Representatives

  Self-represented

Sinead Kennedy Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043079-001

15/03/2021

The complaint is that the Respondent discriminated against the Complainant on ground of disability when he was told he could no longer be served in the shop if he did not wear a mask/face covering,

The Complainant gave evidence having taken an affirmation.  He stated that he does not wear a mask entering any shop in the city.  He said he is exempt under the self-declared exemption clause in Statutory Instrument 296/2020.  He stated that he has already been to Court about this issue.  He stated that he believes the Pandemic is a hoax, and a conspiracy and that even if he was not exempt he would not wear a mask.  He contends that others from an ethnic minority were allowed into the shop without masks.  He contends that he had always been served in the shop until strict rules and fines came in around January 2021.  He stated that the Government and Gardai were harassing people for not wearing masks.  He said that he tried to give papers about his exemption to the shop owner but he would not listen.

The shop owner / Respondent gave evidence under affirmation.  He stated that from August 2020 face coverings in shops were mandatory and he put up signage re same and had 90% compliance from customers.  There were differing behaviours among customers.  Some claimed exemptions, and in one case a customer attacked people who came in not wearing masks.  The Complainant in this case never wore a mask.  He said to the shop assistant that it was a hoax, he was anti-Pandemic and he was never going to wear a face mask.  On the day in question, when he was told by the shop assistant that he can no longer come in without a mask, he became very confrontational and aggressive.   The shop assistant did not want to deal with him as he had been confrontational.            The owner then told the Complainant that from here unless he was willing to wear a mask or face covering, he would not be served.  The Complainant referred to documents he had claiming exemptions but no medical evidence was produced.   It is argued that in the difficult pandemic times, the Respondent and his staff were doing their best to protect staff and customers.

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.

The applicable law

Section 3(1) of the Equal Status Act 2000 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”),

Burden of proof

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.

It is submitted that the complainant is a person with a disability for the purposes of the Act.   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 complainant advised the hearing that he has a disability.  He stated that even if he was not exempt he would not wear a mask.

In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability 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 advised the hearing that the complainant had not advised them of any disability.  The complainant stated that he was self-declared exempt.    The complainant in this case has submitted a claim to the WRC on grounds of disability claiming that he wasdiscriminated against on the ground of disability.    

The complainant asserts that he was treated less favourably on the grounds of his disability.  The complainant is thus required to demonstrate that a prima facia case of discrimination exists. 

I find that the complainant in this case has provided no evidence/documentation in relation to his disability.    I find that the complainant has also failed to provide any evidence in support of his assertion that he was treated less favourably by the respondent on grounds of a disability.

In such circumstances I am satisfied that the complainant has failed to establish a prima facia 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 reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.                                                                                                The complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015.

Discrimination on ground of disability, face covering, refusal to wear a mask, not well founded.