Complainant

Respondent

Parties

Joan  Bradford

Parkgrove Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045581-001

06/08/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for either party gave evidence under affirmation.

At the hearing, the complainant asked for an employee of the respondent to be present however the respondent did not bring that employee with them.

The complainant submitted that she had a disability and gave oral evidence of the existence of the disability.  The complainant gave evidence that she did not disclose the nature of the disability to the respondent simply saying that she was exempt from the provisions of the Statutory Instrument covering mask wearing in public spaces.

The complainant outlined how she went into the respondent’s premises on 8 February 2021 in the company of her daughter.  The complainant outline that neither she nor her daughter were wearing masks.  The complainant stated that they were asked by a member of security to wear a mask but indicated to him that they were exempt.  The complainant submitted that they were then approached by another member of staff together with the security guard and asked to wear a mask, she reiterated that she was exempt.  The staff member asked what was wrong with them and they indicated that under GDPR they did not have to tell him.  The staff member indicated that he was going to call the guards.

The complainant said that she then left the goods she had picked up back and left the shop to wait for the guards.  The complainant submitted that the respondent was “constructively saying she was not getting served.”

The complainant stated that she felt that she was discriminated against.

The respondent submitted that it did not discriminate against the complainant.  The respondent submitted that neither the complainant nor her companion was wearing a mask when they entered the store and that they were asked to do so by one of their employees.  When the pair refused to do so, the employee went to get the assistant manager. 

The respondent submitted that the assistant manager informed the complainant that he had to uphold the law and requested the pair to wear their masks.  They told him they were exempt from wearing a mask but gave no further details.  He asked them on what basis they were exempt from wearing a mask and they said that under GDPR they didn’t have to tell him.

The respondent submitted that the assistant manager inferred that they had a disability but they did not state that they had a disability, did not give the nature of a disability verbally nor did they provide a generic letter form a doctor stating that they were exempt from wearing a mask (with or without any specific medical information).

The respondent submitted that they complainant was not asked to leave the store but that the assistant manager did call the guards who informed them that a car would come.  A Garda car never came.

The complainant gave oral evidence and that evidence was not challenged by the respondent.  The facts of the interaction are broadly agreed between the parties and are as follows:

The complainant and a companion entered the respondent’s store not wearing masks.  They were requested to wear them and indicated that they were exempt from doing so without giving specifics.  The assistant manager came and asked them to wear masks pointing out that he was upholding the law.  He indicated that he would call the police but never refused service to the complainant nor asked her to leave.  The complainant left of her own volition.

Section 3(1) of the Act provides, amongst other things, 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.

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….”.  Although the complainant did not provide written evidence of suffering from a disability as defined in the Act, she gave evidence of the nature of her disability at the hearing.  The contention that she has a disability was not challenged by the respondent. 

I found the complainant to be a credible witness.  On the basis of the oral evidence given in the hearing of the nature and symptoms of her condition, I am satisfied that the complainant has a disability that falls within the definition under the Act.  I note that the complainant did not disclose the nature of her disability to the respondent.

However, I am also satisfied that the complainant has not demonstrated that she was less favourably treated than someone who did not have a disability.  The complainant gave evidence that she was asked to wear a face covering at the outset, and the respondent’s policy appears to be to require all persons to wear a mask during the time of a pandemic.  On the contrary, it appears that the complainant was seeking to be treated more favourably than someone who did not have a disability.

The respondent did not withdraw or prohibit the complainant from accessing its services but sought the intervention of the Gardai to bring matters to conclusion.  Seeking the involvement of the Gardai is not an indication of discriminatory intent.  The complainant voluntarily withdrew from the premises and proceeded elsewhere.

Having regard to Section 38A(1) of the Act, I am satisfied that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to her.  Accordingly, no burden of proof falls upon the respondent.

I find that the complainant has also failed to provide any evidence in support of her assertion that she was treated less favourably by the respondent on grounds of a disability.

Accordingly, I find that the respondent did not engage in prohibited conduct.

Having regard to all the written and oral evidence in relation to this matter, my decision is that the respondent did not engage in prohibited conduct under the Equal Status Act, 2000.

Equal Statues Act – Disability – No prohibited conduct.