Complainant

Respondent

Parties

Trevor  Forde

P. Boland Ltd t/a Topline Bolands

Representatives

Tommy Smyth Tom Smyth & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042742-001

27/02/2021

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 three witnesses for the respondent (a security guard, the managing director and another director for the company) gave their evidence under affirmation.  The parties were facilitated in cross examining the various witnesses.

The respondent confirmed the company name and trading name at the outset and noted that they operated a hardware store and builders merchant yard.

The complainant submitted that he had a disability.  On the day in question, he tried to access the respondent’s premises but was prevented by a security guard and a staff member from entering the business.  They asked him why he was not wearing a mask.

The complainant submitted that he advised them of the illegality of discriminating against a person who is exempt from the requirement of wearing a face covering.  The complainant submitted that there is no legal requirement to present such a certificate.

The complainant submitted that he advised them that he would make an official complaint to An Garda Siochana and advised them of the following: “1) that under paragraph 4.4 of the Statutory Instrument only a Responsible Person (who is defined as the occupier, owner or person in charge) may engage with persons as to the requirement to wear a face covering in a relevant premises.20 At paragraph 4.1. the requirement to wear a face covering shall not apply to a person who has a “reasonable excuse” – please see section 5 of the S.I. No. 296/2020 – Health Act 1947 (Section 31A – Temporary Restrictions) (Covid 19)(Face Coverings in Certain Premises and Business) Regulations 2020. 3) there is no requirement or authority under the Statutory Instrument to enquire into or request proof of a persons’ reasonable excuse. 4) While a private business is free to enact its own rules, which may be in excess of the Statutory Instrument, those rules may not be in breach the law. In this regard, in particular, I am referring to the Equal Status Acts, which outlaw discrimination in the provision of goods and services to members of the public on the basis of the 9 protected grounds, which includes disability.  Under the Equal Status Acts disability includes: (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, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”

The complainant submitted that he confirmed that his condition falls under the definition for disability under the Equal Status Acts and submitted that therefore any refusal to allow him to shop in the store without wearing a face covering is considered illegal under the law.

The complainant submitted that he sought reasonable accommodation from the respondent.

The respondent submitted that the incident took place in December 2020 when the country was under Covid 19 restriction imposed by the Government.  The respondent submitted that it was no different from other business in that they had a requirement to protect their staff and customers in line with the limits imposed on them by the steps taken by the government.

The respondent submitted that on the day in question the complaint attempted to enter the store without wearing a face covering.  The security guard at the door asked the complainant is he had a mask and as outlined by the complaint he stated that he had an exemption and alleged what the security guard was doing was against the law.  The respondent submitted that the security guard outlined the store policy regarding face coverings but the complainant accused him of discriminating against people with disabilities by asking them to wear a mask.

The respondent submitted that the security guard then contacted the director who came to the entrance.  This director then deliberately moved the conversation to a quieter and more discrete location where the complainant was offered options of a mask, visor, personal shopper, phone & collect or after-hours shopping.  The respondent submitted that there was no reasonable discussion from the complainant.  The complainant stated that he would contact the Gardai and the respondent’s head office.

The respondent noted that the complainant only submitted documentation in relation to the hearing but noted that the Doctors letter was not a medical cert and did not provide a medical opinion.  The Doctor does not confirm that the complainant is suffering from a disability. In relation to the Microsoft word file submitted, the respondent noted that the document is from an “affiliate Member “of the Irish Association for Counselling and Psychotherapy (IACP) and that the purported author is, according to the IACP website, not entitled to represent themselves as an expert in the field of Counselling/Psychotherapy.

The respondent contended that the complainant has not provided evidence of the existence of a disability either on the day of the incident or to the WRC for this hearing. The respondent cited the Adjudication Officer decision ADJ 32638 in support of its contention that by not providing such evidence he has not established his complaint.  The respondent noted the Adjudication Officer’s decision in ADJ 32622 but submitted that the present complaint differed from that decision in that the complaint was offered alternative accommodations and was never removed from its premises.

The complainant submitted that he has an invisible disability.  In the circumstances, the nature of the disability claimed by the complainant has been withheld from publication.  However, I am satisfied that the disability cited may amount to a disability under the Act where it is established.

The complainant submitted two documents in support of the existence of his disability.  A letter from his doctor and a note from a counselling psychologist.  I note that the doctor’s letter does not certify the existence of any disability or state that the complainant is a patient but merely briefly states what the complainant has reported to a doctor.  The doctor is not identified specifically but the practice is.  The letter is dated February 2022.

In relation to the letter from the counselling psychologist, it merely states that “I hereby state that my client … has every reason to be exempted/excused from wearing a face covering.”  This does not certify the existence of a disability.  It is also undated.

The complainant confirmed that he did not identify the nature of the disability to the respondent at the time of the incident, relying simply of the assertion that he had a disability.  Having regard to the written and oral evidence provided by the complainant, I am not satisfied that he has established the existence of a disability as provided for under the Act. I find that the complainant has not provided medical evidence to support his claims of disability. He has therefore no evidence to support a claim of discrimination based on a disability or that he should have been provided with special treatment or facilities as might be reasonable in order to accommodate a person with a disability.

Section 38A(1) of the Equal Status Act, 2000 as amended, deals with the burden of proof and states as follows:

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.

Having regard to the written and oral evidence presented in relation to this complaint, I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to him.  Accordingly, I find that the respondent did not engage in prohibited conduct.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – disability not established – burden of proof – no prohibited conduct