ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034270

Parties:

	Complainant	Respondent
Parties	Customer	Company

Representatives

Self represented

Christina O’Byrne BL instructed by Tom McEvoy Harrison O'Dowd Solicitors

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00045171-001	12/07/2021

Date of Adjudication Hearing: 20/09/2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 25 of the EqualStatus 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 complaint is that the Respondent discriminated against the Complainant on the ground of disability. She further complains that she was harassed and victimized by the Respondent when she entered their premises seeking to purchase food / drink and use the bathroom.

Summary of Complainant’s Case:

The Complainant gave sworn evidence, summarised as follows:

On 24th May 2021, she entered the Respondent’s premises where she intended to purchase food / a drink and use the bathroom. She stated that she has a lanyard containing information pertaining to her exemption from wearing a mask. She stated that she was stopped by an individual who told her she could not come in without a mask. She stated that another employee then approached her and told her she couldn’t come in without a mask. The Complainant stated that there was a lot of people ‘milling around’ the restaurant and that she was targeted and others were not. She stated that she has a disability and has medical certification dated 20th July 2020 confirming that she is unable to tolerate wearing a face covering. In cross examination of her evidence, the Complainant replied to the Respondent’s Counsel that she had been specifically stopped at the door, told she had to leave and told her coffee would be brought to her outside the premises. She stated that the Respondent’s employees should not have questioned her right not to wear a face covering and that she was entitled to exemption in accordance with Statutory Instrument S.I. 196.

Summary of Respondent’s Case:

The Respondent submits that no discriminatory acts took place in the manner alleged or at all. The Respondent denies the totality of the allegations contained within the complaint forms and correspondence and in particular refutes any allegation and/or insinuation that the Complainant was discriminated against on the grounds of disability or at all.

The Complainant has not confirmed from what disability (if any) she allegedly suffers and the Respondent to date remains unaware of such disability. The Complainant alleges that she was treated less favourably because she was "not wearing a mask or a face covering even though I have a medical condition". In the context of a disability discrimination complaint this specific assertion/position renders the complaint legally un-stateable automatically. This is because in order to establish a prima facie case of discrimination, the Complainant must first show that she is suffering from a disability as defined by the Act and that any alleged less favourable treatment occurred arose due to that disability not because she was "not wearing a mask or a face covering". Notwithstanding the fact that no discrimination nor difference in treatment took place, the Acts do not cover a difference in treatment solely on the basis of wearing a mask or face covering which is precisely the case being made by the Complainant. In order to succeed under the Acts, a complainant must show that a difference in treatment occurred because she/he labours under a specific disability as defined by the Acts and that a respondent was aware of the specific disability. In other words, the Acts do not permit a complainant to simply assert that he/she has a disability without substantiating such as a fact. As stated above, where the Respondent is entirely unaware of the alleged disability, where it was obligated to enforce social distancing to keep its staff and customers safe and where the Complainant was treated no differently to other customers/patrons it is respectfully submitted that the complaint herein has no likelihood of success and therefore should be dismissed as frivolous or vexatious. It appears that the Complainant's position is that her medical exemption (which was not challenged by the Respondent and remains unknown to the Respondent) entitled her to act as she pleased within the Respondent's premises and that therefore the Respondent's request that she adhere to the queuing and collection/delivery system in place amounted to discrimination. That position is, unfortunately, a fundamental misunderstanding of the legal burden of proof held by a complainant in disability discrimination law and means that the complaint is bound to fail irrespective of how the Complainant allegedly felt during her encounters with staff members of the Respondent.

It is submitted that the WRC is bound by the interpretation of "frivolous or vexatious " as it pertains to Irish law determined by the High Court, see the recent case of Eager v Minister for Employment Affairs and Social Welfare ADJ-00028241. ln that regard, where the within matter can only be characterised as 'futile, misconceived or bound to fail" having regard to all the circumstances, it is respectfully submitted that the Adjudication Officer determine the matter as such.

Therefore, it is respectfully submitted that either the Complainant's claims, in respect of the totality of the foregoing, or in respect of one or other of the preliminary legal objections made herein by the Respondent, should fail automatically.

The burden of proof

Section 38A deals with the burden of proof as follows:- "(l) 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. " The foregoing provisions oblige the Complainant to provide evidence from which it may be presumed that prohibited conduct occurred and having regard to the totality of the foregoing it is submitted that she has not and that she cannot do so. This is because the Complainant was not treated any less favourably to any customer at any time. Indeed, the requirement for an appropriate comparator is contained within section 3(2) and it is a vital aspect of discrimination law. The Complainant must show that she was treated less favourably than someone else was or would have been in a comparable situation. In other words, an Adjudication Officer decides that in similar circumstances, the same treatment was not or would not have been encountered by a person who does not share the Complainant's alleged characteristic or status. The question therefore must be asked, would another person with a different status, i.e. a person who does not have a disability/has a different disability, have had the same experience in respect of the request to adhere to the queuing and collection/delivery policy to maintain social distancing? The answer is clearly yes in circumstances where social distancing was required due to the global pandemic "having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19".

The factual position

The Complainant attended at the Respondent's restaurant on 24 May 202l. It is important to note that the State was still subject to strict level 5 lockdown restrictions and indoor dining was not permitted. The Respondent was permitted to operate as a take-away service only and did so in compliance with the law. Upon entering the premises, the Complainant, having ignored the sign posted queuing instructions, was approached by a member of staff, Ms B, Customer Experience Leader, who attempted to asked her to wear a face covering, in line with legal requirements and Government guidelines. The Complainant ignored Ms B, walked further into the restaurant and waved an unidentifiable document on a lanyard that she wore around her neck. Ms B followed the Complainant and again attempted to advise her of the procedures that were in place within the restaurant due to the national emergency. Ms B attempted to tell the Complainant that the procedures applied to all customers i.e. regardless of whether or not he/she had to wear a face covering. The procedures in place at the time were:- a. All staff were required to wear face coverings at all times; b. Signs were affixed to the front door advising customers that face coverings had to be worn unless an exemption applied; c. A staff member who was designated as a "door coordinator" would welcome customers at the front door point of entry and direct them to the sanitation station; d. If the restaurant was busy, the door coordinator would direct a queue outside the restaurant to prevent over-crowding inside the restaurant in order to adhere to social distancing regulations; e. A sign above the sanitation station at the entry point read "PLEASE WAIT HERE"; f. From the sanitation station all customers were directed to order from kiosk machines located near the point of entry; g. When an order was placed at the kiosk machine the customer was directed to a collection spot or if a customer was exempt from wearing a face covering he/she was directed to wait close to the kiosk and his/her order would be delivered to him/her by a member of staff. This queuing and collection/delivery policy was adopted to avoid congregation around the service/till area where social distancing would otherwise have been hard to achieve; and h. When an order was received, all customers were directed to follow a marked exit route which was separate from the entrance route. The aforementioned policy had been tried and tested in various Respondents test stores by an external company (NSF) testing, inspecting and certification company, who were contracted by the respondent before any of the franchises were allowed to open in any capacity. Unfortunately, the Complainant ignored every element of the Respondent's policy as noted from (a) to (h) above. The Complainant then engaged with Ms H, Business Manager, and advised her that she felt discriminated against and continued to point to the document hanging around her neck. At no stage did Ms H or any other member of staff suggest that the Complainant's documentation was invalid or that she was not entitled to an exemption, the matter did not arise in circumstances where the Respondent's staff were simply attempting to get the Complainant to adhere to the queuing and collection/delivery policy in place that applied to all customers regardless of whether or not he/she was exempt from wearing a face covering.

Evidence of Ms H

Ms H provided sworn evidence, summarised as follows:

She stated that she had been employed in the restaurant for the past 25 years. She was now Business Manager. In the course of the period during which restrictions applied during Covid 19, her role was to train staff in the procedures for keeping staff and customers safe in the extremely difficult circumstances of the Pandemic. The procedure during Level 5 was that the Customer Co-Ordinator Ms B would show customers how to use the kiosk system, and the customers would then not have to congregate around the counter area. Regarding masks, the system was if the customer hadn’t got one, it could be provided, and if the customer was exempt, then they were asked to wait and the staff member would give them their order just at a table near the kiosks. The Complainant was not asked to wait outside the restaurant at any stage of the interaction.

Findings and Conclusions:

The issue for decision by me now is, 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 and whether the Respondent harassed or victimised the Complainant.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

The applicable law

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 advised the hearing that she is a person with a disability, resulting in her inability to wear a face covering.

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 3(2)(j) defines victimisation as being:

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the F12[adjudication officer] or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

Reasonable Accommodation

Section 4 of the Act 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) 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.

Harassment

Section 11(5) defines ‘harassment’ as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

The burden of proof

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.

This requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred.

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.

In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability and that the respondent treated the complainant less favourably or harassed the complainant on grounds of disability.

The respondent advised the hearing that the complainant had not advised them of any disability. The complainant stated that she should not have been questioned or challenged as she was wearing a lanyard and had a reasonable excuse for not wearing a mask.

I note that the complainant in this case provided no evidence/documentation to the respondent on the day in question in relation to her disability. I find that the complainant has failed to provide any evidence in support of her assertion that she was treated less favourably by the respondent on grounds of disability or that the respondent failed to provide her with reasonable accommodation for such disability. The complainant has made assumptions. It has been established by the Labour Court that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” (Elephant Haulage Ltd v Garbacevs).

I note that the complainant in this case by her own admission stated that he had not disclosed details of her disability to the respondent. She contended that by simply wearing a lanyard with information on it in respect of exemptions, she should not have been questioned or challenged.

The respondent in this case has demonstrated that all reasonable measures were taken in relation to co-ordinating queues, arranging for customers to be served without jeopardising the health and safety of customers and staff. The complainant in this case has not demonstrated that this constituted discrimination against her on grounds of disability.

From the evidence of Ms B I note that the complainant in this case was not refused service and was offered an alternative method of service in accordance with the safety measures introduced during the time.

As regards the claim of harassment on grounds of disability the complainant has failed to establish that she was subjected to harassment by the respondent on grounds of her disability.

In addition, as regards the claim of victimisation, the complainant failed to adduce any evidence in support of an assertion that she was subjected to any adverse treatment arising from any of the actions outlined in Section 3(2)(j).

I am satisfied from the totality of the evidence adduced in this matter that the complainant has failed to establish that she was treated less favourably by the respondent on grounds of a disability or that she was subjected to harassment by the respondent on grounds of her disability.

In such circumstances, I am satisfied that the complainant has failed to establish a prima facia case of discrimination on grounds of disability. Accordingly, I am satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of disability. In addition, I am satisfied that the complainant was not victimised by the respondent contrary to section 3(2)(j) of the Equal Status Acts and was not refused reasonable accommodation as provided for in section 4 of the Acts.

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.

In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and have decided that the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the Equal Status Acts, 2000-2015, in respect of a refusal or failure 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. In addition, I am satisfied that the complainant was not harassed as defined in Section 11(5) or victimised by the respondent contrary to section 3(2)(j) of the Equal Status Acts 2000-2015.

Dated: 1st November 2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Discrimination on grounds of disability.