ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034377

Parties:

	Complainant	Respondent
Parties	Karen Bradford	Parkgrove Ltd

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00045591-001	06/08/2021

Date of Adjudication Hearing: 20/06/2022

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant alleges that she was discriminated against by the Respondent in relation to the provision of goods/ service on the grounds of disability.

Summary of Complainant’s Case:

The Complainant has provided a detailed written submission.

The Complainant and her mother entered the Respondent’s store in Stillorgan on the 8th February 2021. They were approached by an employee who questioned them as to why they were not wearing masks. The Complainant told her they were both exempt. Then Michael Coffey came over to them and asked them in an aggressive way what was wrong with them. She again told him they were exempt and due to GDPR she was not obliged to give him details of her medical situation. He demanded she give him detailed private information before she could avail of the exemption. Michael Coffey, acting as agent for the Respondent erred in law in denying her service and in doing so discriminated against her on the grounds of her disability. Nowhere in law does it state that the Complainant must provide details of the reasons giving rise to the exemption. The Complainant takes issues with the Respondent’s Intoxicating Liquor Act example stating that that Act does provide for proof of age, whereas the S.I 296/2020 does not provide for proof of exemption.

Mr. Coffey called the Gardai. The Complainant and her mother waited outside for approximately 30 minutes in the cold but had to leave to attend another appointment before the Gardai arrived.

The Complainant conceded under cross- examination that she was never asked to leave the store and she had not actually attempted to buy anything before she left for her appointment.

Summary of Respondent’s Case:

The Respondent has provided a detailed written submission.

The Respondent has a legal obligation to provide a safe place of work to its’ employees and to protect the customers who come into the store. The Complainant was not asked to leave the store. The Complainant was not prevented from purchasing anything in the store and was therefore not denied a service. Mr. Coffey did ask the Complainant why she was exempt. She refused to disclose that information to him. She has since provided a letter of exemption from her GP. Had she provided that letter on the day, that would have been the end of the matter.

Findings and Conclusions:

The Complainant alleges that she was discriminated against on the grounds of disability in relation to the provision a service.

I must decide, based on the documentation submitted and the evidence adduced at the hearing, 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.

Section 3(1) 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

" 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."

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.

It is submitted by the Complainant that she is a person with a disability for the purposes of the Act. 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….”. The Complainant did not provide any information in relation to her medical condition to the Respondent or to the WRC. She did submit a letter to the WRC, dated the 24th July 2020, from her GP which stated “This is to confirm that Karen Bradford is exempt from wearing a mask due to a medical condition”. I note that the certificate is only in relation to face masks and not face shields. On 8th February the Complainant admits that she did not show the Respondent her letter of exemption, instead she relied on GDPR. She also admits that she was not asked to leave the store. No evidence was adduced that she was prevented from buying anything in the store. When Mr. Coffey stated that he was going to call the Gardai for assistance, she and her mother, of their own volition, decided to wait outside.

Based on the medical evidence adduced at this hearing, I cannot, due to a lack of specific information find that the Complainant is suffering from a disability. Furthermore, even if the Complainant had provided medical information to me that would satisfied the legal definition of a disability, the Respondent could not have discriminated against her on the grounds of that disability because they were not informed of it at the material time. For the Complainant to state “I am exempt” is not sufficient. There are other grounds set out in S.I. 296/2020 which may exempt someone from wearing a face covering that do not amount to a disability. If someone seeks to rely on an exemption set out in S5 (a) (i) and/or (ii) in a discrimination claim on grounds of disability, they must disclose at the very least evidence of their exemption at the material time.

In such circumstances I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability. The complaint fails.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

The Complaint fails.

Dated: 24th June 2022

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll

Key Words:

Disability. S.I 296/2020. Face Covering. Discrimination. Exemption.