Complainant

Respondent

Parties

Grace  Buchanan

 Kavanaghs SupeValu

Representatives

  Grace Buchanan

 Christina Cunningham, SuperValu

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043884-001

05/05/2021

At the outset of the hearing it was agreed that the respondent should be Kavanagh’s SuperValu, Ballybofey, rather than Mr Charlie Ferry who was the Store Manager.  The complainant, Ms Grace Buchanan attended the hearing and gave evidence under oath/affirmation.   The Security Guard, Mr John O’Connor and the Store Manager, Mr Charlie Ferry both gave evidence under oath/affirmation for the respondent.  Both parties were offered the opportunity to cross examine evidence given by the other side.

On the 2nd of April 2021,  Ms Buchanan, the complainant, was refused entry into SuperValu Ballybofey, Co.Donegal for not wearing a mask. She had been a customer of the store for ten years.  The complainant has suffered severe asthma for thirty years and is unable to wear a mask as it causes distress and breathing difficulties. She is on two types of inhalers.

The complainant explained to the security guard that she was exempt from wearing a mask and asked him to get the manager. The manager, Mr Charlie Ferry came and the complainant was very upset by the manner in which he approached her and her six year old daughter.  He told her that it was the law to wear a mask in his store.  The complainant explained that she was exempt and physically could not wear one. Mr Ferry said he didn’t believe her and just to wear a mask. The complainant continued to say that he was discriminating against her, but he said he would need to see proof and that the complainant would need to show him her medication. He made her feel in the wrong and pressured her to just wear a mask. This went on for a while with the complainant getting upset and uncomfortable having been singled out in front of a of a lot of shoppers coming and going to the shop.  The manager called the complainant out as a liar which shocked her as he had often greeted her and her family over the years in the shop.

The complainant called head offices of SuperValu when she went home and filed a complaint about Mr. Charlie Ferry.   That weekend she was so distressed that her asthma was irritated more than usual and it caused her eczema to flare up on a continuous basis.

This incident took place on 2nd April 2021. At this stage thousands of people had died due to Covid in Ireland and millions worldwide.

Legislation is usually painstakingly researched, analysed, reviewed and stress tested before it is enacted. The Government imposed legislation on employers that was created promptly in the middle of a public health emergency. Employers were given no formal guidance on the management of this law. There was no other similar style of legislation that could act as credible 'precedent' to employers. The vast majority of employers and customers were acting in good faith and protecting each other during this time.

The respondent Supervalu was no different. They had taken extensive care to ensure the safety of all employees and customers. There are 70 employees in that branch, all of whom have family and friends, some of whom are vulnerable. They were coming into work each day and the least the respondent could do, out of respect for them, was to act responsibly and uphold the law of the land fairly. The Return to Work Protocols, as they were then called, were followed such as Hand Sanitisers, all forms of signage, floor markings, clear one-way paths around the store, training for all employees and regular cleaning and disinfecting regime.

As well as these protocols, which were subject to inspection by the Health and Safety Authority, employers also had to be conscious of S1296/2020 regarding face coverings, The Health, Safety and Welfare at Work Act, the public liability elements of their insurance, Employment Equality Acts and the Equal Status Act.

The respondent tried to enforce S1296/2020 reasonably and sensibly. Some disabilities are visible, many are not. The respondent was answerable to the HAS, and possibly the Gardai, if it was reported that they were allowing people into the store without a mask. The respondent had no interest in sensitive personal medical data but to ask for a doctor’s letter stating someone is exempt or in Ms. Buchanan's case to show an inhaler, they felt was sensible and reasonable. If Ms. Buchanan believed that anyone who stated to a retailer that they were exempt should be let in then this would make a mockery of the law and place people unnecessarily in danger of covid.

Employers have to uphold other laws where it is accepted that paperwork can be asked of a customer or employee relating to one of the 9 grounds. Examples include providing reasonable accommodations under the Employment Equality Acts (information regarding disability) or the sale of age restricted products (proof customer is over 18) where an employer can and should ask for evidence to ensure they uphold the law properly and fairly. If one follows the logic of the Complainant, the respondent should simply serve alcohol to any customer to says they are over 18 with the ensuing legal consequences.

Section 4(1) of S.1 296/2020 it states, a person shall not, without reasonable excuse, enter or remain in a premises where goods are sold directly to the public. The respondent submits that the complainant did meet the threshold of 'reasonable excuse'.

Witness Evidence.  Mr John O’Connor, Security Guard

Mr O’Connor was the Security Guard on duty at the time of the incident the subject of this complaint.  In summary his evidence is as follows;

At about 16.30 on 2nd April 2021, he observed a lady seeking to enter the premises not wearing a mask.  When he approached her she stated that ‘I don’t believe in wearing a face mask or a shield and no I am not putting one on’.  Mr O’Connor explained that it was his job to ensure that everyone wore a mask unless they were medically excused and were wearing a ‘medically excuse ribbon’ around their neck.  Mr O’Connor offered to call the manager, Mr Ferry, who repeated the Store’s position regarding face masks. The complainant was agitated and the manager asked her to lower her voice as ‘he wasn’t prepared to create a scene at the door’.  The complainant shouted that ‘I’m being discriminated against because I have a medical condition’.  The manager withdrew into the store.  Some minutes later the complainant returned saying she had her solicitor on the phone and asking to have lines typed saying she was refused entry.

The respondent submits that the cases of Anthony Lyttle v Costcutter (ADJ32493) and Bernard Carberry v T'O'Higgins & Co. Ltd (ADJ32055) are relevant where it details that a complainant must demonstrate they have a disability and also that they made the Respondent employer reasonably aware of this. To rely on the simple assertion that they are exempt is not enough.

Witness Evidence.  Mr Charlie Ferry Store Manager

Mr Ferry was the Store Manager on duty at the time of the incident the subject of this complaint.  In summary his evidence is as follows

On the date in question Mr Ferry was informed by the Security Guard that a lady wished to speak with him.  On going to the front door Mr Ferry’s initial aim was to take the conversation away from the front entrance as voices were raised and quite heated. Mr Ferry explained to Ms Buchanan that he had to apply health advice to protect customers and staff. He offered to provide either a mask or a visor to Ms Buchanan.  He offered to do her shopping for her.  Ms Buchanan declined these offers and kept shouting that she was exempt and didn’t need proof.  She shouted at him did he wish to speak to her doctor or to see her medication.  Mr Ferry informed her he did not, but that other customers with exemptions had exemption passes.  After some more interaction Mr Ferry said that he was not accepting any more abuse and walked away.

The wearing of masks during the pandemic was a contentious issue, with some members of the public opposed to wearing them, notwithstanding perhaps that they may not have had any underlying medical reason for not wearing them.  This left service providers and their staff, who stayed open, at considerable risk and resulted in a difficult situation, as to how they could be legally compliant and still reasonably accommodate a person with a disability for whom the wearing of a mask was a difficulty due to the nature of their disability.

I note that in evidence, the security guard stated that the complainant did not tell him that she was medically exempt and only informed the shop manager of this.

It is of note that the policy in relation to the wearing of masks was not one arbitrarily introduced by the respondent but rather one following Government regulation under S.1 296/2020.  At the time of the incident no process for dealing with exemptions to wearing masks had been specified other than in Section 4 and Section 5 of the Statutory Instrument the relevant parts of which state;

4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering…..

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,

The rights afforded to individuals under the Equal Status legislation cannot be viewed in isolation and must be balanced with the rights of others in the community, which is relevant in this instance where the pandemic threatened the lives of many in the community. The complainant states that she was entitled to reasonable accommodation by virtue of a disability and that this accommodation was that she should not be asked to wear a mask.  When looking at what constitutes reasonable accommodation it is common sense that the person seeking such accommodation should provide evidence of the disability in the nature of a medical opinion stating the accommodation required.  In employment situations for example decisions regarding reasonable accommodation should be based on medical advice. In the case of mask wearing therefore,  the person seeking the accommodation of not wearing a mask, should present medical  evidence that they should not be required to wear a mask.

 It is also of note in this instance that the complainant was offered the option of wearing a face guard in place of a mask,  which the respondent would supply.  The complainant, in her evidence, stated that she could have worn a face guard but questioned whether such protection was any good.  She also said she would not have felt comfortable in a face guard. Absence of comfort does not appear to me to be envisaged as a cause for exemption under the Regulation detailed above, which talks about ‘sever distress’. The complainant also confirmed that the store manager would not have known that she was asthmatic. 

For all of the above reasons I find that the respondent did not engage in prohibited conduct.

The respondent did not engage in prohibited conduct.

Equal Status, face masks, reasonable accommodation, disability