Complainant

Respondent

Parties

Paul  McGregor

 SR Clo Ltd t/a Synchro

Representatives

  Self represented

Maria Burke

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043241-001

24/03/2021

The Complainant alleges he was discriminated against in relation to the treatment he received by the Store Manager when he entered a phone retail store without wearing a mask/face covering.

The Complainant stated that he has a hidden disability in that he has a reduced lung capacity which causes him ‘air hunger’ if he is required to wear a mask.  He entered the shop in question on 11th February 2021.  He had a problem with his work phone which he was attempting to have resolved.  The Complainant’s detailed submission is as follows:

I am aware that this is a retail outlet, and that there is a statutory instrument in place which requires the wearing of face masks in view of the COVID pandemic. I am also aware that there are certain exemptions to the requirement to wear a face mask;

• A reasonable excuse would be where one cannot wear a face covering because of a physical or mental illness or a disability, or because it would cause severe distress

I am aware that if an exception is being claimed, then one must tell the member of staff the reasonable excuse for not wearing one. Unfortunately, in order to remedy a fault in a mobile telephone connected to my work account, I was required to attend the EIR phone shop. My having dealt with the customer services on 1907 the previous day compelled me to do so, where I was told I would have to collect a replacement SIM card. This I did. At this stage, I was wearing a scarf and coat (it was snowing). I went into the shop where I saw a man and a lady stood behind the Perspex screen. I bid them good morning and immediately the man called on me to put on a ‘Face mask’.

I took a couple of steps forward and explained that I could not wear a facemask, as I have a medical condition. He insisted that I put on a face-mask, or leave the shop and told me that I would have to deal with my query through the Customer Services telephone number. I explained that they had told me to come into the shop to resolve my issue. I could see that he was extremely nervous. To alleviate his concerns, I tried to demonstrate that I was not being awkward but had a genuine issue. I said that I would keep good distance, I washed my hands… at this he told me I needed to “sanitize”. I said that I had just done so when I left the car but did it again for his peace of mind. I even said that I would raise my scarf on my face, but again explained my medical issues. I tried to explain that I had scarring on my lung and that it had reduced capacity and if I covered my mouth and nose it caused me to hyper-ventilate. Despite all of this information -which I am not obliged to disclose, he insisted that I pull the scarf over my nose, too. He disregarded what I was trying to explain and justified this by stating that he had had COVID. I said “I am sorry about that”. He then made some efforts to assist me. I explained that the new mobile telephone sent to me just a few weeks before was cutting people off as I was ringing them or speaking to them. I tried to explain the Statutory Instrument that implemented the face covering requirement had exceptions but he simply refused to listen. He was very rude in telling me that if I did not state what it is that I needed, I was to leave the shop. I explained. He asked me for the telephone number of the defective telephone, so that he could look up on his system the account details. I had the defective telephone in my left hand and in order to retrieve the telephone number, I had to search my personal telephone (which I held in my right hand. I put the defective phone on top of a 3’ tall sign, so I could use two hands to search (one to hold the phone and one to tap through the menu until I reached it). At this he demanded I remove it and claimed that my actions were spreading germs, from my telephone to the surface of the (ironically) COVID sign. At this, the lady, who had remained silent throughout, walked from behind the screen and went out of the door leading to the back office. As I searched, one handed, the retail person told me to move as I was standing at an angle to the Perspex and he now wanted me to be directly in front of it. He then told me to hurry to get the number, even though I was now operating one handed. I asked him why he was harassing me, as I was trying to get the information he needed. He did not answer. I gave him the information. He said that as I was not a named person on the account, he could not assist me further and gave me a replacement SIM card for the defective telephone, which he told me had to then be processed by one of the nominated persons on the account.  I then thanked him and said that I was going to explain the exemptions to the statutory instrument to him, but as I started to do so, he too walked towards the back office. He said, “Next time bring a doctor’s letter.” Before he disappeared into the back office, I asked his name. Later that afternoon (4pm), after having given some thought to the whole incident, I decided that one of the options I might consider was to start a procedure under the Equal Status Act 2018. To this end I rang the Eir office, Nenagh and asked to speak to the Manager. ‘E’ identified himself as the Manager. I asked him for his surname as I required it for the purpose of completion of Form ES1, but he declined to give me this (under GDPR) and said that he did not have any employee number.  Whilst this matter remains fresh in my memory, I should add that I experienced a range of emotions and anxiety as a result of this encounter. I appreciate that there are some people who are hostile to the idea of wearing masks and view this as a political issue. I appreciate that their stance may be belligerent. Mine was not and I took pains to try to explain my particular predicament. I tried on a number of occasions to gently and patiently explain the legal position on which I relied. I was not over-bearing, hostile, argumentative or loud. I took pains to address any concerns of the staff. I kept my distance. I said I was going to keep my distance. I sanitized my hands (upon his demand) for the second time in just a few minutes. I tried to cover my mouth with my scarf, notwithstanding the discomfort I was bound to feel. I felt humiliated, embarrassed and entirely at the mercy of the staff in relation to the telephone. His demands were, I feel, an attempt at exerting authority or control and was designed to undermine me. I felt that he was extremely rude in dismissing any attempt at my explanation – by talking over me and by threatening to withdraw his service.

I felt that he should have had some understanding and that the position in which he is employed must have had training around the types of disability that he might encounter. This surely would include those with hidden disabilities. It dawned on me that I had become a victim- a victim of direct discrimination. A person wearing a face-covering would not have had to endure what I did.

I believe that there are many who wear a face covering even though it is a detriment to their health because of the bullying and over-bearing attitude of naïve retail staff who are trying to police a statutory instrument without knowing the exemptions open to genuine customers.

The Respondent made a submission as follows:

This incident occurred during an unprecedented Global Pandemic, a particularly challenging time for all retail stores and our staff were following all Government guidelines to the best of their ability, in the protection of both staff and customers alike.

At that time we were made aware that the HSE were spot checking stores around the country to ensure compliance of the Government mandated Covid-19 guidelines for the Retail Industry. All staff were on high alert that their store could potentially be audited by anyone from the HSE.

We firmly believe that our employee ‘E’ was following the Government mandated guidelines as well as our staff Trading Policy guidelines.  As Manager, he was acting in the support and protection of his store staff and all customers who entered the store.

Notwithstanding the customers complaint around his exemption from wearing a mandatory face covering, it is implicitly clear from the staff statements provided, that this customer was requesting ‘E’ to complete a task which breaches both our Company Policy and GDPR regulations. 

As per the customers intended purpose for entering the store, they received the replacement sim as  requested, however the team were unfortunately unable to complete his request on this occasion due to the fact that he was not the account holder or an authorised person on the account noted.

We understand that this can be frustrating for the customer however at all times, we must follow GDPR regulations.

It appears that this customer was well versed in and quick to state legislation around his exemption to wear a face covering and challenging staff who kindly requested the customer to comply with both the store and Government guidelines. 

We do not agree that the customer was discriminated against in any way but the store Manager was merely trying to protect everyone involved in the retail store environment during these unprecedented times of a Global Pandemic.

Sworn evidence was given by staff members ‘E’ and ‘M’.

‘M’ stated that on February 11th, a customer entered the store without a face mask, face shield, or any other form of face covering. He walked right up to the back of the desktop - not standing at the foot marker stickers on the floor for the 2 metre distancing, nor did he stand behind the perspex screen. At this point, ‘E’ said “Sorry, sir, you have to wear a mask inside retail stores” to which the customer replied “I’m not wearing a mask”. At this point, she said she thought the customer was just being awkward. The customer then went on to make a comment about the government brainwashing people so she then thought he was part of the anti-mask movement.

Sworn evidence was given by the Complainant, the Shop Manager and a staff member who was present on the day of the incident.  The Complainant’s evidence was that he did receive a replacement sim card and that while he did not deny that the Respondent had provided him with a service, he took the case as he wished to highlight the way he had been treated.

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.

The applicable law

Section 3(1) of the Equal Status Act 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. 

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must :

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”   

I note the common case that the Complainant received a ‘replacement sim card’.  Both sides agreed that this occurred.  The Complainant himself in the hearing agreed that he had been given the sim card by the Manager and he was not alleging denial of service, but the manner in which he was dealt with by the Manager. 

In relation to the Complainant’s assertion of disability, I note no evidence of his disability was provided to the Shop Manager on the day of the incident.

Section 5 of the Act provides:

5.—(1) 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.

Discrimination on grounds of disability, not well founded.