Complainant

Respondent

Parties

Martin  Kelly

Dpl Group Ltd Dpl Group

Representatives

Daragh M. Keane 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-00042310-001

03/02/2021

The Complainant submits that he was discriminated against by the Respondent on grounds of his disability in November 2020, when he was refused access to a service following his refusal to wear a face covering.

At the outset of the hearing the Respondent submitted that this complaint should be struck out as the existence of disability has never been established by the Complainant.  According to the Respondent the existence of a disability was not established on the day the incident took place nor anytime thereafter. The GP’s letter submitted by the Complainant makes no reference to a disability, it only states that the Complainant does not have to wear a face mask. As no disability has been established there can be no basis for the complaint.

On this matter the Complainant submitted that a letter from his GP exempting him from having to wear a mask is and was proof of the existence of a disability. In addition, the Complainant submitted that he was granted a disability payment in 2020 so therefore he is in general terms suffering from a disability.

I considered this matter carefully and proceeded to hear the evidence.

The Complainant submits that he was discriminated against by reason of his Disability in being refused the provision of goods/services.

The Complainant submits that he with into the Respondent’s shop on 17 November 2020 without a face mask and spent approximately one hour in the shop looking around the bathroom section. The following day, 18 November 2020, he returned to the shop, again he was not wearing a face mask, again he spent about an hour looking around. He also spoke with a staff member and she said she would email him a quote for a bathroom set.

On 19 November 2020, the Complainant again visited the shop, he was not wearing a mask. The Complainant entered into conversation with a member of staff, but this person told the Complainant that he would not serve him as he was not wearing a mask. The Complainant produced his doctor’s medical exemption letter and explained he was not wearing a mask for medical reasons. The Complainant submits that this staff member told him that, “he should be home and not be out”.  The Complainant told this staff member that he had been in the shop the day before and had not been asked to put on a mask. Another member of staff then told the Complainant to get out and a third staff member joined in. The Complainant submits that they were accosting him and ordering him to leave the shop immediately.  The Complainant submits that due to a stroke he has a speech impediment and was not able to defend himself vocally.

At this stage the Complainant submits that he took a photo of the staff with his phone as he was forced to exit the shop. He was followed by a staff member who was insisting loudly and threateningly that he delete his picture from the phone.  The Complainant was terrified he would be attacked. The Complainant submits that he was followed by this staff member into the carpark. 

The Complainant submits that he was very upset and distressed by the traumatic ejection from the shop, the public accosting and the threatening behaviour of the staff member who followed him out of the shop. The Complainant was unable to do normal activities and he became withdrawn and depressed over the following days.  He consulted his doctor five days later for assistance with the after effects of the incident.

The Complainant submits that he sent the Respondent an ES 1 Form and received an ES 2 Form in return.

In direct evidence at the hearing the Complainant outlined the events of 19 November 2020 as per the submission above.  In addition, the Complainant stated that when he took his doctor’s letter out to show it to the staff member the response he got was that the staff member did not care. When he was told to get out of the shop he stated that he did so without a word but was followed by a member of staff who kept insisting he should delete the photo he had taken of that staff member.  The Complainant stated that he was very distressed by the incident and was hardly able to talk when he got home. The Complainant said he had not seen a big sign outside the shop.

In cross examination when asked what his disability is the Complainant sated that he did not think he had to answer that question, that he had “a lot of disabilities” and it was a “none issue”.  The Complainant stated that he had told the staff member that he had had a stroke, but the staff member did not want to listen to him nor did he want to read the Complainant’s letter. The Complainant stated that he had suffered a stroke some 13 years ago and had had a major stroke in 2019

When asked why he could not wear a mask or a shield, the Complainant stated that it would be impossible for him to wear a mask or a shield.  When asked how he was able to run if he had a breathing difficulty the Complainant stated that he has run every day for 40 years. When asked why the Complainant’s doctor was not present to give evidence the Complainant stated that he “thought we did not need him.”

The Complainant’s wife also gave evidence at the hearing.  She stated that her husband had come home on 19 November 2020 from his visit to the shop in a very distressed state. She stated that the incident had had a big impact on her husband.

In closing the Complaint put forward that there had been an inconsistent approach by the staff in the dealings with him; that customers were incited to gang up on him; that there was a mob attitude to him and in taking the photo he was only trying to defend himself.  The Complainant submits that his appearance allied to the letter from his doctor should have been enough to explain his non-wearing of a mask. He was discriminated against and suffered negligence at the hands of the Respondent.

The Respondent denies the allegations entirely. The Respondent submits that for an allegation of discrimination on grounds of disability to succeed the Respondent staff members had to be aware that the Complainant had a disability. It is the Respondent’s case that the letter produced by the Complainant on the day the incident took place did not mean he had a disability and no evidence has been adduced subsequently, either in the Complainant’s submission nor in rebuttal, to support the existence of a disability.

The Respondent does not dispute that the Complainant was asked to leave the shop on 19 November 2020.  The Respondent submits that on that date the Complainant approached a member of staff at the checkout without a face mask or face shield.  The Complainant complained that he had not received a quote which he had requested the previous day. The staff member at the checkout told the Complainant that they could not serve him when he did not have a mask on.  The Complainant then produced a letter regarding wearing a mask.  The staff member replied that he could not serve the Complainant even with the letter as he did not have a mask on. The Complainant says that the Complainant then became involved in an argument with another customer about the wearing of masks.

The staff member who had been dealing with the Complainant began serving another customer and proceeded to show this customer products in the shop. As this was happening the staff member noticed the Complainant taking photos of him and the other customer on his mobile phone without his or the other customer’s permission.  When asked if he had taken a photo the Complainant said he had. The Complainant was then asked to delete the photo, but he refused.

A second member of staff approached the Complainant and asked him to leave the premises as he was not wearing a mask. The Complainant again showed the letter he had produced earlier, however this staff member informed him that it was company policy that customers either wear a mask or a face shield.

The Complainant then walked towards the exit where again he was asked to delete the photo he had taken; he refused to do.  He then got to his car and left the carpark.

The Complainant submits that it at the time of the incident it was mandatory to wear a mask in all retail and commercial premises and on public transport. The Company had spent a substantial sum in fitting out their shops with the necessary Covid-19 infrastructure.

The Respondent submits that the Complainant had looked for a quotation on 18 November 2020 and an email with a quotation was sent to him on the same day; there was no need for him to come in the following day especially as there was a very large sign at the entrance to the shop reading, “Exemption Notes, Any person holding an exemption note can phone and collect or arrange delivery. Do not enter this store without a face mask or shield. No Mask No Service.”

The Respondent put forward that it has accommodated all its customers with a phone in and collect service which was also available to the Complainant.

The Respondent submits that was a stressful time for their staff.

The Managing Director of the Respondent company gave evidence at the hearing.  He stated that when the country went into lockdown the shops run by the Respondent were deemed to be an essential service.  At the time of the incident the Managing director stated that signage was in place regarding mask wearing in the company shops.  The shop manager also gave evidence at the hearing.  He stated that he had not been present on the date of the incident.  He stated that signage had been in place since August 2020.He stated that was not aware of a disability after the date of the incident.

The next witness for the Respondent, a staff member, Mr Moran, was present in the shop on 19 November 2020. He stated that on that day he was informed by another member of staff that a customer was confronting another.  When he went downstairs he saw the Complainant and another man having a heated discussion. He told the Complainant that they did not serve people who were not wearing masks.  He says that the Complainant produced a note saying he was exempt, he did not go further than showing the letter. The witness stated that he was not aware of a disability.

In closing the Respondent put forward that for a claim of discrimination to succeed the staff members involved in the incident had to be aware of a disability; they were not.  The existence of the doctor’s letter does not mean the holder has a disability.  There was no evidence in the Complainant’s submission or in rebuttal to support the existence of a disability.  The Respondent submits that in evidence at the hearing when asked what his disability is the Complainant said he did not want to say.

The Respondent submits that the burden of proof lies with the Complainant and as he has not shown the existence of a disability then he has not met that burden.

The issue for decision by me now 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 considered all 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) 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”),

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….”.

In cross examination, when asked what his disability he had, the Complainant stated that he did not think he had to answer that question, that he had “a lot of disabilities.”  He then stated he was unable to wear a mask due to a stroke he had in 2019. The Complainant when questioned, stated that his doctor’s letter was sufficient to show he had a disability.  The Complainant did not have any documentation to support his assertion that he had a disability other than his doctor’s note. 

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.

The Respondent advised the hearing that the Complainant had not advised them of any disability.  The Complainant stated that he had shown the shop staff his doctor’s letter and had told them he had had a stroke. The staff member who dealt with the Complainant on the day in question did accept that the Complainant had shown him the doctor’s letter, however, he was not aware of the existence of any disability.

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

 In making my decision, I have taken into account all the evidence, written and oral, made to me by the parties to the case.  

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.

I find the Respondent did not engage in prohibited conduct.

Covid-19, Face Mask, Service, Shop, Discrimination