Complainant

Respondent

 Anonymised Parties

A retail outlet

Representatives

  The claimant represented herself

 Mr.Kevin Bent

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044327-001

24/05/2021

The claimant’s complaint was received by he Workplace relations Commission on the 24.05.2021.She submitted that she suffered from a disability  and was prohibited form access to and use of the respondent’s service when she entered the shop on the 17th.March 2021.She submitted that this constituted discriminatory treatment under the Equal Status Act , 2000.The respondent refuted the complaint and submitted that  the claimant had failed to demonstrate that she had a disability and /or make the respondent reasonably aware of same.

The claimant submitted that she suffered from arthrogryposis from birth , that she had the protected characteristic of a disability  and that her condition meant she was unable to wear a mask/ face covering .

She submitted that she entered the respondent’s premises on the 17th.March 2021 to buy essential household items. The claimant submitted that she was approached by a staff member when she entered the second floor of the shop and was asked if she had a face covering. She responded that she did not as she was exempt from wearing a mask. The claimant stated that the staff member replied “exemptions don’t apply in this store , we have a designated area for people like you that are vulnerable .If you want to go to the designated area , we will happily do your shopping for you”. The claimant submitted that she was shocked and upset and asked to speak to the manager. The manager was on a break and she was advised that she could wait outside until the manager returned from her break. The claimant said she was too upset to stay and left the shop. The claimant called  the store at 4.00p.m. and spoke with the manager – explaining the nature of her disability and advising the manager that she felt she was discriminated against because of the way she had been treated in the store. She advised that the manager did not agree with her statement and stated that vulnerable people were allowed enter the store and be seated in the designated area assigned for vulnerable people .The manager said it was the policy of the respondent  for shop assistants to do the shopping for vulnerable people/customers  who because of their disability are unable to wear masks/ face coverings. The claimant set out her account of her ensuing exchanges with the manager – she sought the identity of s a staff member responsible for dealing with customers with disabilities but was advised to contact the respondent’s main office in Naas. She rang the office on the 18thMarch and left a contact details but nobody reverted to her.

The claimant submitted in her complaint form that “because of my disability you prohibited me from access to and use of your service. The company failed to provide a service to me and would not permit me to carry out my right to shop and use their service independently and without hindrance. The company’s refusal to allow me to shop was humiliating and left me traumatised. I now fear entering any retail store in the future in case I will be subjected to another situation of embarrassment , humiliation and distress that I experienced on Wed 17thMarch 2021.”

The claimant asserted that the reasonable accommodation she was seeking was to be allowed to shop. She asserted that she would not be near any other customers and she volunteered her exemption certificate from mask wearing from her GP but the staff member replied that the exemption letters were not accepted in the store.

The claimant said that she felt humiliated when she was refused a service. She said her disability was obvious and apparent .When she offered the exemption letter to the staff member she asserts she was advised they did not accept exemption letters in the store.

The claimant clarified that by virtue of her disability she is unable to apply a mask or visor and would require assistance in doing so. She stated that this was the reason why her GP furnished her with a letter of exemption as she knew the limitations of the claimant’s disability and understood the difficulties posed for her in endeavouring to put on a visor or face mask.

The claimant argued that the offer of the store to assign her to a separate area and have a staff member do her shopping for her did not amount to reasonable accommodation as they had “ no reason to take my independence away from me”. She affirmed that she had fought for her independence all of her life and that the store was taking her independence away from her – she reiterated I don’t think that is reasonable. The claimant said she had not been refused access to a service in  any other premises throughout the pandemic.

The respondent’s representative advised that the company was proud to have remained open during the pandemic and asserted that this was due to the protocols we took and “how seriously we took our responsibilities to keep people safe.

It was asserted that the claimant did not present evidence/information to reasonably support her assertion that she was exempt from the law regarding face coverings. The provisions of ADJ-00032493 and ADJ-00032055 were invoked in support of the respondent’s assertion that the claimant must demonstrate that they have a disability and make the employer reasonably aware of this.

The respondent’s representative set out the backdrop to the incident and outlined the number of deaths from Covid in Ireland and internationally. He referenced the legislation that was imposed on employers and submitted that employers were given no formal guidance on the management of the emergency legislation. He submitted that the  vast majority of employers  and customers  were acting in  good faith and protecting each other during this time. He set out details of the protective measures introduced by the respondent company and stated that during one Health & Safety Authority inspection, no further recommendations were issued as the company’s protocols were so good. Their Branch had 23 employees and restricted customer numbers to 30.

It was accepted that the company did not engage with the claimant following her visit as engagement with other customers had proved futile. It was submitted that the staff member asked the claimant if she would like a mask or a visor but she refused. It was submitted that the staff member told the claimant that that she would do her shopping for her and bring her to a separate till at the end while she waited in a designated area. It was submitted that the claimant became irate and the staff member became nervous of “the aggressive situation “ .It was submitted that the complainant mentioned she was exempt but offered no reasonable evidence to support her assertion that she was exempt from mask wearing.

It was submitted that the respondent supported their customers in various ways during the pandemic. It was submitted that 90% of customers who entered the store without a mask simply forgot and accepted a free one or retrieved one of their own. It was submitted that “some did engage positively and produced enough evidence to satisfy our team they had a reasonable exemption. It was submitted that the claimant’s contention that that if she let the store know that she was exempt that that was enough – makes a mockery of the law. The respondent submitted details of the various anti covid measures applying in the store during the pandemic. The representative was adamant that if the claimant had provided sufficient evidence, she would have been allowed shop in the store. The respondent asserted that the store provided the claimant with reasonable accommodation by offering to do the shopping for her. No questions had been raised by other customers.

The respondent clarified that where exemption letters were deemed accessible, the same arrangement applied – i.e. the person was assigned to a designated area while a staff member did their shopping for them.

t The Relevant Legislation:

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines disability as follows:

“disability” means—

(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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

The Burden of proof provision at section 38A provides

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant in equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant must first establish a prima facie case of discrimination which is a twofold process: (1) that she  has a disability and (2) that she  was subject to discriminatory treatment by a refusal of the Respondent to provide reasonable accommodation for his disability. 

Disability:

The complainant furnished an exemption letter from her GP during the course of the hearing. I am satisfied that the Complainant had a disability as defined under section 2 of the Act.

Reasonable Accommodation:

The ‘Reasonable Accommodation’ provision in the Act, in its relevant part,  at section 4 provides:

(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.The main dispute between the parties relates to the matter of the claimant offering her letter of exemption from her GP to the respondent company.The claimant was adamant that she did so and that the company response from the Shop Assistant was that the store did not accept certificates of exemption – the store for their part asserted that if it had been offered it may have been sufficient to satisfy the team that they had a reasonable exemption.

 The claimant gave her direct evidence at the hearing and demonstrated that she obviously suffered from a serious disability. She also furnished the WRC with her letter of exemption from her GP. The respondent company maintained that the staff member had left and consequently was not available to give evidence. The manager with whom the claimant spoke on the 17th March 2021 did not give evidence. I am satisfied that the claimant is suffering from a serious disability and find on the balance of probabilities that she did offer her exemption confirmation from her GP to the Shop Assistant.

I fully acknowledge the sincerity and bona fides of the claimant with respect to her conviction that the respondent’s policy of assigning a customer who did not wear a visor or mask to a designated area while a staff member undertook their shopping for them compromised her independence. However on the basis of the evidence presented, that same practise was applied to non-mask wearing customers who had no disability or who had a different disability to the claimant. In such circumstances I find that the accommodation being offered to the claimant while fundamentally unacceptable to the claimant who suffers from a serious disability was such that she was not refused a service and that it  amounted to reasonable accommodation . Consequently, I find against the claimant and do not uphold her complaint.

On the basis of the evidence presented I find that the respondent did not engage in prohibited conduct.