Complainant

Respondent

Parties

Kamil  Janowicz

Ridge Trading Ltd, t/a/Regan's Supervalu Firhouse

Representatives

  Self

Anita Moran,  McLoughlin & Co 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-00042603-001

19/02/2021

The complainant went to the respondent’s supermarket on 01/12/2020 at 13.20.  He was asked by a security officer to adjust his face mask to cover his nose and mouth.  The complainant alleges that he was discriminated against as he had medical problems and the store manager asked him to leave.  The store manager states that he asked the complainant to leave due to his inappropriate interaction with the security officer.

The called to the supermarket on 01/12/2020 after he collected his 4-year-old from school at 13.00.  He was at the store at 13.20.  He was requested by the store security officer to wear his mask “full-face”, i.e., covering his nose and mouth.  The complainant gave evidence that he told the security officer that he could not wear the mask fully as he had a medical condition and had a doctor’s certificate to this effect.   The complainant submits that he was asked by the security officer to show the certificate and he told the security officer that he was not entitled to see this document.  The complainant stated that the manager was called, and he was advised by the security officer that the complainant did not want to wear a mask.  The complainant submits that the manager then asked him to leave without asking him any questions.  The manager said that everyone had to wear a mask and that he should show his certificate.  The complainant said that the manager did not have a right to this information or to demand it from him.  He showed the certificate to the manager who again told him to leave as he was rude to the security officer.

The complainant’s son was very upset and crying due to the shouting and he left the store.

The complainant submitted that he works as a manager in a major supermarket and was familiar with the regulations around COVID-19 and the wearing of masks.  He was clear that the security officer and store manager did not have any right to ask him to show his medical certificate.  The complainant submits that he was treated in a discriminatory manner because of his medical condition and disability and he was very stressed as a result of this incident.

Following this incident, he contacted the respondent’s head office and complied with the ES 1 form requirements.  The respondent made a copy of the available CCTV and the complainant reviewed this prior to the hearing.  Due to the resolution and other technical conditions it was agreed that there was no evidential value in this recording.

In cross examination it was put to the complainant that the respondent’s witness stated that he acted in an aggressive and abusive manner towards the security officer.  The complainant denied that he had done so. He also submitted that because of his role is aware of the role of security officers and has always had respect for them.  It is not in his nature to behave is the manner alleged by the security officer. The complainant also denied that he used the “N” word and said that he used such language.  It was also put to the complainant that the evidence from the respondent’s witnesses was that he was wearing his face mask below his chin when he arrived at the store.  He denied this and said that he wore the face mask covering his mouth but not his nose so as to facilitate his breathing. 

The complainant was asked if it was obvious that he had a disability and he said that when the told the security officer about his condition he would be aware from that point.  The complainant also denied that he shouted at the security officer.

The complainant was asked if his child was pulling at him to leave and he said that he was.  The complainant noted that the witness statement said that his child was saying “Let’s go Dad, Lets go”.  The complainant said that this is totally untrue as his child does not speak English. 

The complainant was asked to confirm if he was obliged to ask him to wear a mask and he confirmed that that was the regulation.  He was also asked to confirm if the security officer was entitled to ask him to wear the mask and he confirmed that he was.

The complainant was asked to confirm that he had a medical note and a copy of this was provided to the hearing.  He agreed that this said that he “is/was suffering from Asthma” and that “patient does not tolerate mask” was what this document contained.  The complainant confirmed that that was what was on the document and that he had used this on occasions when he needed to travel.

It is the complainant’s position that the respondent has changed the narrative in relation to this incident.  This was about his inability to wear a mask fully and the respondent has decided that it will be changed to make it look like his behaviour was the issue.  He denies this and said that all he wanted to do was to but some fish in the store that afternoon.

The respondent denies that the complainant was discriminated against on the grounds of disability on 01/12/2020.  The complainant was refused entry to the store due to his aggressive and verbally abusive conduct when he was politely asked to do so in order to comply with his legal obligations and the respondent’s obligations under S.I. 296 of 2020.

The respondent also relies on the statutory exemption to the Equal Status Acts whereby anything to be done by another Irish law, i.e., S.I. 298 of 2020, cannot be regarded as discrimination under the Equal Status Acts.

The security officer, Mr SM, gave evidence in relation to the incident on 01/12/2020.  He is employed by the respondent for six years and knows the store and its regular customers.  He confirmed that he had received training in relation to the regulations and these were updated and reinforced for all employees on a daily basis.

Mr SM gave evidence that he was on duty on 01/12/2020 and when the complainant approached the store he had his face mask under his chin.  He asked him to wear it up over his mouth and nose.  Mr SM gave evidence that the complainant said that he did not have to listen to him, but he explained the policy to the complainant.  The complainant then “said nasty things to me” and also used the “N” word.  This interaction was heard by a nearby cashier who alerted the store manager.  The store manager then arrived and on the basis of the interaction he brought the complainant’s attention to the publicly displayed notice that they reserved the right to refuse admission. 

Mr SM also gave evidence in relation to how he would deal with customers who had a disability or needed any assistance when they arrived at the store.  He outlined that the policy was to be as helpful as possible and to ensure that customers were able to purchase their food.  They would provide any assistance possible in these situations and Mr SM gave some examples of how he dealt with customers who required assistance. There was a strong ethos and culture in relation to accommodating customers who were elderly or customers who needed any assistance.

Mr AOD gave evidence that he was the store manage with the respondent and worked there for twenty-three years.  On the day of the incident he was called to the checkout area by a cashier and he observed the complainant “in [the security officers’] face”.  He told the complainant the he was required to wear a mask and the complainant continued shouting.  Mr AOD said in evidence that he pointed the complainant’s attention to the sign which informed customers that management reserved the right of admission.  On the basis of the complainant’s behaviour he made a decision to ask him to leave the store.  Mr AOD said that the complainant then mentioned that he had a medical condition, but he confirmed his decision to the complainant.

Mr AOD gave evidence of the daily training updates which were received and relayed to all staff.  He confirmed that the policy in relation to a medical condition was to allow the customer to do their shopping.  Mr AOD also gave evidence that he never asked any customer for a certificate or evidence of a medical condition or any issue in relation to the wearing of a face mask.  Mr AOD said that he always took people at their word.

I find that the complainant has complied with the notification requirements and it is therefore appropriate for me to adjudicate on this complaint. The complaint in this case is based on the allegation that the complainant was discriminated against contrary to Section 3(1)(A) and 3(2)(g) of the Acts.  In this complaint there is a reasonable connection with the complainant’s medical condition and I find that this complaint is on the ground of disability. 

Discrimination on the “disability” occurs where there is less favourable treatment of one person compared to another person because one person has a disability and the other either is not or is a person with a different disability.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (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”).

The sections of the Equal Status Act which describe discrimination need to be outlined:

“disability” means –

(a)    The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body

(b)    The presence in the body of organisms causing, or likely to cause, chronic disease or illness

(c)     The malfunction, malformation or disfigurement of a part of a person’s body

(d)    A condition or malfunction which results in a person learning differently from a person without the malfunction, or

(e)    A condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

“discriminate” means to discriminate within the meaning of section 3(1) or 4(1)

Section 3(1) For the purposes of this Act discrimination shall be taken to occur –

(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) or, if appropriate, subsection (3B) (in this Act referred to as the discriminatory grounds)…

As outlined above Section 3(2) sets out the grounds relevant to this case which at (g) states:

“That one is a person with a disability and the other either is not or is a person with a different disability”.

The burden of proof is set out in Section 38A of the Act which provides that: “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”.

The first requirement in a case involving discrimination is that the Complainant who is claiming discrimination on the grounds of disability must be able to provide facts to which will satisfy at least one of the criteria which define disability under the Act.  It is commonly understood that in many cases a disability will not be known or obvious.  The key provision is that in order to prosecute a claim of discrimination on the ground of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, the complainant must be able to provide evidence to support that claim.  While this can often be a sensitive and difficult area for people who have a disability, this cannot overwrite the requirements of the legislation.  The complainant in this case did not have any medical evidence that he was exempted, and he did not provide any details other than a piece of note paper which said that he “is/was suffering from Asthma” and that “patient does not tolerate mask”. The complainant submitted that this was sufficient to allow him to travel by air it does not meet the requirements of the Equal Status legislation.

While the complainant in his evidence at the hearing confirmed that the wearing of a mask was difficult for him due to his asthma there is no basis to doubt his belief in this regard.    However, I am not satisfied that his statement does not meet any of the five definitions set out in the Act or if such a difficulty with the wearing of a mask constitutes a medical condition.  Section 2 of the Act places the responsibility for proving that he has a disability.    The complainant in his evidence confirmed that as a manager in another supermarket he was well versed in the regulations pertaining to the wearing of face masks at that time.  In that context, it is difficult to understand what he did not adopt a proactive approach to any issues he had with the wearing of a face mask and providing a reasonable explanation to the security officer and store manager.

In reaching my decision I have taken into account the submissions, written and oral that were provided to me.  The following is my decision as a result of this investigation:

(a)    The complainant was not discriminated against by the respondent on the grounds of disability contrary to Section 3(2)(c) of the Equal Status Acts, 2000 – 2015.

I find that the complainant was not discriminated against on the grounds of disability pursuant to Section 4 of the Equal Status Acts, 2000-2015.  The complaint is not well founded.

Discrimination.  Face Mask. Disability.