ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035915

Parties:

	Complainant	Respondent
Parties	George-Calin Breban	Deli-Wine John Street Limited Burzza ( No Appearance)

Representatives

Self

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-00047015-001	06/11/2021

Date of Adjudication Hearing: 13/06/2022

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 he was discriminated against by the Respondent in relation to a disability which prevented him from wearing a face covering.

Summary of Complainant’s Case:

On 28.08.2021 the Complainant was in Waterford with three friends. They decided to get something to eat. They went to the Respondent restaurant and sat outside. They ordered their food. Just before the food arrived the Complainant went inside to wash his hands. He had ordered a burger and was planning on eating it with his hands. He did not know where the restrooms were, so he asked the barman if he knew where they were. He replied "yeah, do you have a mask?" He told him “I'm exempt”. Nearly instantly a waitress came from outside. She started to talk over his conversation with the barman. The Complainant told her that he was exempt. At this stage people were starting to watch what was going on. The waitress asked him if he had proof that he was exempt. He did have his medical certificate with him, but he refused to show it to her. Instead, he explained, that under Article 9 of GDPR, she cannot process special category data. She explained that it was a policy of the restaurant that people had to wear a mask indoors. He wanted to wash his hands before eating and because there were no facilities outside he had to go indoors to do that. In that regard the Respondent failed to provide reasonable accommodation to the Complainant. Everyone that was eating indoors was allowed to sit for 45 minutes and eat their food without a mask. The Complainant alleges that to be forced to disclose his medical conditions /certification deprives him of his dignity.

Summary of Respondent’s Case:

There was no appearance for or on behalf of the Respondent. Having studied the case file, I am satisfied that the Respondent was on notice of the date and time of the remote hearing and had been sent the log in details for the remote hearing.

Findings and Conclusions:

The Complainant alleges that he 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 and whether the Respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

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.

The Respondent is a restaurant. Therefore, I am satisfied that the Respondent is providing a service within the meaning of the Equal Status Acts.

It is submitted by the Complainant that he 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 stated in evidence that he suffers from a condition which prevents him from wearing a mask. During the hearing he produced a medical certificate from a Dr. Thomas O’ Donnell, Dunmanway Medical Centre, dated 17.11.2020 which set out “This is to certify that the above named suffers from severe anxiety on wearing a mask”. However, the Complainant, on his own admission, refused to disclose to the Respondent that he had a disability and refused to produce his medical certificate. The only information he gave them was that he was exempt. I also note that the Complainant turned on a recording device prior to entering the premises. A transcript of that recording was submitted into evidence. He admitted that he has recorded all interactions he has had in other establishments in relation to the issue of mask wearing and that he has filed six or seven other claims with the WRC for adjudication.

The Complainant stated that everyone who was eating indoors was allowed to stay in the restaurant for 45minutes without their masks on. However, I note that at that time all of those patrons would have had to show their vaccination status before being allowed to eat indoors. The Complainant refused to disclose his vaccination status to me.

Based on the medical evidence adduced at this hearing, I find that the Complainant is suffering from a disability however the Respondent could not have discriminated against him 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 to the person / entity at the material time and at the very least, evidence of their exemption.

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: 20th June 2022

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll

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