Complainant

Respondent

Parties

Paul  Kinsella

Delaneys

Representatives

  Self

John A. Sinnott John A. Sinnott & 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-00044666-001

16/06/2021

The Complainant alleges that he was discriminated on the grounds of disability when the Respondent, during a level 5 lockdown, refused to serve him without a facemask on.

On 31 March 2021 the complainant attempted to enter the respondent’s shop in order to buy vape oil. He was accompanied by his wife. He was not wearing a mask. There was no signage on the shop door or in the shop window. He walked into the shop. He was immediately asked to put on facemask. He told the shop assistant that he did not need to wear one as he was exempt. The complainant then left the shop. He came back moments later with a copy of the relevant section of the Equal Status Act and S.I 296. He recorded the interaction he had with the shop owner which he said he intended to use as evidence. When there, he told Mr. Byrne that he did not have to wear a mask and to refuse him service was discrimination.

The Complainant can’t wear a mask because it causes him distress. He gets breathless, gets headaches, increased heartrate and sweats. He suffers from breathlessness / shortness of breath and the wearing of the mask exacerbates that. He did not have to provide any evidence of that due to his GDPR rights.

The complainant alleges that there is evidence that the use of facemasks restricts airflow and due to his shortness of breath he feels he can’t wear one. 

Mr. Byrne is the owner of the Respondent’s shop, Delaney’s. On 31.03.2021 the Country was in a level 5 Covid - 19 lockdown. The shop was open. It had the standard yellow Covid 19 posters on the door of the shop. The Complainant came into the shop. A female shop assistant approached him and asked him to put on a facemask. He said he did not need to wear it as he was exempt. Mr. Byrne then told him that he had a duty to protect his staff and his customers and asked him if he would wear a mask or a visor. Both were sold in the shop. He said “No”. He was then asked to leave the shop. He did leave but under protest. He was quite irate. Moments later he came back and handed Mr. Byrne a copy of the relevant section of the Equal Status Act and the S.I 296. He recorded the interaction.  He repeated that he was exempt from wearing a mask and did not have to provide medical evidence. 

The Complainant alleges that due to his disability he was/is unable to wear a facemask. He does not have any medical documentation in relation to his alleged disability because, on his own admission,  he has never gone to his GP or any other medical professional in relation to the symptoms he outlined during the hearing. He stated that he suffers from shortness of breath generally and has done so for years. He never felt the need to go to his doctor about that. I note the Complainant used to be a smoker but now vapes. He gave evidence that when he puts on a facemask he suffers from shortness of breath, his gums start trembling, he gets dizzy, gets headaches, increased heart rate and drowsy and he sweats profusely. He gets very stressed by the symptoms. He never felt the need to go to his GP because it only happens when he puts on a mask. He said that it happens because airflow is restricted by the mask.  He did not have any evidence of reduced airflow due to the use of face coverings other than his own opinion.   The complainant is relying on S.I. 296 Section 5.

5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if -

(a) the person cannot put on, wear or remove a face covering -

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress,

Pursuant to the Equal Status Act “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;

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

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,

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited.  In Southern Healthboard v Mitchell the Labour Court stated:

    “The first requirement is 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 Complainant 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 those primary factors establish 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 is no

    infringement of the principle of equal treatment.”

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”

The Respondent gave evidence that not only does he have a responsibility to all of the shop’s customers but also to his staff. At the time of the alleged discrimination the Country was in a level 5 lockdown with a 5km restriction. I am satisfied that the shop had the yellow covid 19 poster on the door. When the complainant informed Mr. Byrne that he could not wear a mask, he was offered a face shield.  He refused the offer without any explanation. The Respondent had a general policy of “no mask no service” that was applied to everyone equally.

Having carefully considered the evidence of the Complainant together with the documentation he submitted to the WRC, I find that the complainant has failed to set out any facts that could lead me to conclude he has established a prima facia case of discrimination on grounds of a disability. No evidence whatsoever was produced in relation to his alleged medical condition. The complainant admitted that he has never even gone to a doctor for his shortness of breath. I note that even if the complainant had establish he came within “reasonable excuse” category for not wearing a mask, he was offered a face shield, which offer he declined.

The complaint fails.