Complainant

Respondent

Parties

Noel  Mc Grath

 Aurivo Co-Operative Society Limited-Homeland

Representatives

 Self

G Quinn BL instructed by McHale Aurivo Sol.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043870-001

04/05/2021

This case is concerned with a claim that the Complainant was discriminated against on grounds of disability and denied reasonable accommodation when he attended at the Respondents premises in March 2021 without a face mask.

The Complainant went to the Respondent’s store in Belmullet on the morning of the 22nd of March 2021. He selected goods for purchase and went to the cashier to pay. He was not wearing a mask at the time, and nobody said anything to him about not wearing a mask until he approached the cashier. In his ES1 Form he described the exchange as follows: “I am not serving you without a mask”. He said he was not asked why he did not wear a face covering and was spoken to in a raised voice in front of customers. He told the cashier that he was exempt, and her reply was: “Where was your badge”. At no time was he or his disability taken into consideration by the staff. He said that when he told the cashier that she was breaking the law she replied, “I do not care as I have a sick father at home” and went on to say “I will not be serving you without a mask” after the Complainant explained S.I. 26 of 1997 section 9 [This is the reference in the ES1]. He submitted that he had been served previously in the store without wearing a mask and without any issue being raised on the 18th of August 2020 and the 25th August 2020 and he provided a copy of these receipts to the WRC for the hearing.

In his notification of the complaint, he states that he had explained to the cashier that there was no requirement in S.I. No. 296 of 2020 to produce proof. In that complaint form he goes on to say:

“I asked 2 other members of the staff to be served, and was refused. Stephen the manager returned to the store a few minutes later after purchasing his lunch, I asked to be served by him, his phone rang and he requested to hang on for 2 minutes. He was not aware of the earlier refusals and when one of the lads came in he asked the lad to serve me. I was served and spoke to the manager outside and explained to him what happened and why I was exempt in a private conversation. Without the instruction from the manager, all members of staff on that day had refused to serve me.”

In his evidence at the hearing, the Complainant stated that he normally went in through the stores, that he is well known and knows the staff on a first name basis. In addition to the contents of the ES1 Form, he added in his evidence that he said to the cashier that she was trying to coerce him into wearing a mask and her response was to refer to her elderly father and that she would have nothing to do with him. He asked her did she know what she was doing was against the law and she said she didn’t care; she wasn’t serving him. He said there were other people in the store at the time contrary to the statement made in the response to the ES1 Form. He went out the back and met two other named employees and they refused and said they weren’t serving him. The manager whom he holds in great regard came into the store and he asked was there any chance of getting served to which he replied yes wait a second. He phoned one of the others and asked could you send a man up and told that person to serve him. He said that this was not the first time he had attended at the store without a mask, and he was served on the other occasions.

In response to the Respondent witnesses the Complainant said that it was quite clear from their testimony that they had not read the statute [referring to S.I. 296 of 2020]. There was nothing in that statutory instrument that required him to provide any medical evidence to be exempted from wearing a mask. Generally, he pointed to inconsistencies between the response to the ES1 Form, the Complainant’s submission and witness testimony of the two employees who gave evidence at the hearing. References to statements they described him making on the day were misleading and deflecting. The manager was not aware that he had been refused when he organised an employee to serve him and if he had not come back into the store that day the Complainant says that he would not have been served. On leaving the store and while out the back he spoke to the manager and told him what had happened, and he said he did not have to tell him what his condition was but that as he knew him for a long time he explained the reasons giving him some detail around his conditions.

It is his contention that he was not obliged to provide any medical evidence to prove his exemption under S.I. 296. If required for the purposes of the hearing, he could produce evidence given to him by a doctor in relation to a recent flight and he was prepared to do so. He contends that he was discriminated against and treated less favourably than others when he had a disability and was not provided with a reasonable accommodation [for that disability]. At the conclusion of the hearing the Complainant spoke about his own personal record and character as a person as someone who had never been in any difficulty with the law and in other situations had security clearances at the highest level. He was not going to let anyone take his name or his character.

In opening her presentation, the representative of the Respondent stated that there was a lot in agreement between the parties regarding the events of the day in question.

The Complainant had entered the store not wearing a mask; he went to the counter to pay; he was offered a mask and he refused.

He said that he didn’t have to wear one and no reason was given. It is acknowledged that he may well have been asked for a badge. The cashier made it clear that she did not feel safe and that she had a sick father at home and that she was not serving the Complainant.

The Complainant then said he would get someone to serve him, and she replied fine, that she had no problem with that. The Complainant then went out the back where he met a Mr K and Mr D. One of these (Witness B) did not really say anything. The Complainant then said that the cashier would not serve him because he wouldn’t wear a mask and then went on to say: “This whole thing is a f...ing joke. Everyone is brainwashed. It’s all a conspiracy”. Thereupon the two employees refused to serve him.

The manager was returning to the store and the Complainant approached him to be served and the manager gave a direction to another one of the employees to serve the Complainant. The manager apologised to the Complainant for any inconvenience and the Complainant did say at that point that he did have a medical condition which meant that he could not wear a mask.

The position of the Respondent is:

1.      That the Complainant was served.

2.      That it is established that to claim a disability a person must provide evidence of that disability and also must provide a comparator in accordance with the relevant legislation.

Regarding the complaint of not providing a reasonable accommodation, the store at the time operated different systems for any person who was uncomfortable or unable to attend at the store. There was a telephone and online service, and it was also possible to arrange to pick up ordered goods in the yard without entering the shop. The regulations provide that:

“(1) A person shall not without reasonable excuse enter or remain in a relevant premises in a relevant geographical area without wearing a face covering and (4) a responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements”

It is clear that there were signs in the store requiring people to wear masks and the Respondent had obligations under the guidelines provided. The Complainant was offered a mask to comply with those requirements and he refused to wear one.

The Respondent also has obligations to their employees under the Safety, Health and Welfare at Work Act 2005. It was submitted that the obligations on the Respondent should be taken into account when weighing up this situation.

Regarding the receipts for goods sold to the Complainant and provided to the WRC, it was not possible to tell from these receipts whether the Complainant had entered the store on the days in question or whether he had obtained deliveries through some other means or some other collection arrangement outside of the store.

Witness evidence [for the Respondent]

Ms A was the cashier on the day in question and referenced in the Complainant’s evidence as the first person to refuse to serve him. She stated that she was employed at the store since 2010. On the day in question, she recalled the Complainant and his wife approaching the counter. Neither of them was wearing a mask. This was a very bad time [with Covid] in Belmullet and she stated that she had an older father who was vulnerable. Asked to describe the interaction, she said they came to where she was located, and she offered them a mask. The Complainant replied that he did not have to wear a mask and she asked him for a badge. There was a bit of over and back and he said that he knew the law. She said she did not care about the law; she was not serving him without a mask. As he went away she said I hope you will get someone else to serve me, and he said he would get one of the lads. Asked did she see him again after that, she said that she observed the Complainant coming out after talking to the lads and saying to his wife they would not serve this me, this is a f...ing joke. She kept her distance at that stage. In response to the Complainant, she said that she did not know the law, she was not a lawyer.

Asked whether the S.I. was explained to her as a member of staff, she said she could not recall. The advice was to keep yourself safe and if you have a problem that you were to go to a manager. Asked if she had served others who were not wearing a mask, she said she had refused others not wearing masks and she got someone else to deal with them.

Witness B - Mr D

Mr D was one of the two employees approached by the Complainant for service after the cashier declined. It should be noted that the other person more directly involved in that exchange is no longer with the employment.

The witness stated that he is employed at the store since 2017. The Complainant came out of the store and put his head in to where they were working, and he said that E (the cashier) had refused to serve him because he was not wearing a mask and that she was afraid he would kill her father. He was asked what’s the issue and he said he would not wear a mask and they were all brainwashed. Mr K, the other employee, replied well if that’s the case we’re all brainwashed and if we’re all brainwashed, I am too, and I won’t serve you either. Asked did he the witness say anything, he replied no, he was taken aback by the whole thing to be honest.

The witness was not sure how the manager called for someone to serve the Complainant, whether it was a telephone call or whether he said it to them directly, but he said that someone was to serve.

Asked what training he had received regarding not wearing the masks, he said to make sure everyone was wearing a mask and they were told there were guidelines, but he does not recall any specific reference to a statutory instrument at the time.

As was pointed out to the parties at the hearing, while there have been quite a few cases involving claims of discrimination related to a Complainant not wearing a mask during the Covid pandemic in specified places, each case is different and is to be decided on its own facts.

This complaint falls to be considered under Part 11 Section 5- Disposal of Goods and Services.

No issue arises regarding the serving of an ESI or a response from the Respondent in terms of the time limits specified in Section 21 of the Act. The Complainant has pointed to differences between the contents of the response to his ES1 and the evidence at the hearing.

Following the completion of evidence, I put to the Complainant the terms of the legislation, that is to say the Equal Status Act, in respect of discrimination and disability. This was helpfully available to the Complainant in the Respondents submission for him to read through. At this point it is useful to insert section 3(1) of the Act which describes discrimination and which the Complainant was taken through at the hearing

“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’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,”.

The Complainant stated that it was his understanding that it was discrimination to treat a person not able to wear a face covering differently to other people [who could wear a face covering].

Moving on to the grounds of discrimination, section 2 which defines disability, the Complainant was asked which part of the definition of disability contained in the Act was he saying applied to him for the purposes of his complaint.

““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 condition or 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;”.

In response the Complainant stated that section (e) was the clause that he felt applied to him, and he referred to panic, and claustrophobia caused by wearing a mask.

In response, Respondent stated that the response given by the Complainant is not sufficient to meet the terms of the definition of disability in section (e) in that panic is not a disturbed behaviour as described and neither does claustrophobia fit within the terms of section (e).

To my knowledge claustrophobia can be a designated medical condition which in extremis can cause disturbed behaviour though anxiety. Certainly, I can conclude that neither I or the barrister for the Respondent are qualified to dismiss such a condition out of hand. However, at no point in his exchanges with staff did he cite such a condition as a reason for his refusal to wear a mask. Even after he was served when he spoke to the manager who arranged for him to be served, he gave evidence that he referred to difficulties for example the effect of water over his head.

There was no basis for the cashier’s insistence on a badge for an exemption to prove a disability and neither from her evidence was such an insistence store policy. On other occasions she had followed the employer advice-call a manager to deal with the situation. Why she did not do so on the occasion when both the Respondent and his wife refused to don masks, is unclear.

However, from his own evidence there was no exchange between the Respondent and the cashier about his health, just that he had an exemption. And her responses and indeed her evidence at the hearing were clearly related to her concerns about herself and her father and not any dismissal of a health issue since none was mentioned. Even now, a year on, while the annoyance of the Respondent could be clearly seen, so also could the emotion of the cashier when she recalled that difficult time in Belmullet where the incidence of Covid was extremely serious in that community.

 Moving on to the second stage in the sequence of events on the day, from his own evidence the Respondent went to the two other employees and spoke about the cashier and her refusal to service him in disparaging terms. He did not mention any exemption or any medical reason for his refusal to wear a mask. Nothing could be taken from his remarks about a conspiracy and the attitude of the cashier that reflected his having a disability. And from the evidence of witness B-it is reasonable to conclude that the other employee who spoke was rejecting the attitude of the Complainant, in general and towards a colleague. The evidence of the witness as to what occurred and what was said by the Complainant was credible evidence and as such, cannot be dismissed as a deflection as the Respondent sought to do at the hearing.

Moving on to the third stage of the events, the Complainant was not wearing a mask, again he made no reference to a disability and neither did he mention an exemption. At that point, service was arranged without question regarding the fact that he was not wearing a mask.

The finding in this case, is that the refusal to serve the Complainant was not related to a disability at any stage and as such discrimination cannot have been said to have occurred as matter of fact.

CA-00043870-001

The complaint brought by Noel McGrath against Aurivo Co-Operative Society Ltd-Homeland under the Equal Status Act is not well founded.

Discrimination Complaint-Disability-Reasonable Accommodation-Goods and Services