Complainant

Respondent

Parties

George-Calin  Breban

O'Callaghan Digital Sound & Vision Limited t/a  O'Callaghan's Expert (in Liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self- Represented

Diarmuid Falvey – Diarmaid Falvey Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046504-001

03/10/2021

The Complainant submits that he was discriminated against on the grounds of disability, and denied reasonable accommodation, when he was denied service at the Respondent’s premises for not wearing a mask, where his disability made it difficult for him to wear one during Covid-19 restrictions.

The Respondent submits that the Complainant never disclosed to the Respondent  staff that he had a disability. It further submits that this is a vexatious claim which is one of many similar claims  taken by the Complainant against various businesses.

The Following is a  summary of the  written submission of the Complainant describing the incident in question, as sent to the Workplace Relations Commission (WRC) prior to the hearing (redacted where necessary to protect the identification of those not in attendance):

On the above date and time I entered respondent's shops looking for a 12V to 5V USB phone charging adapter for use in the car. As I entered the shop, I turned right towards the display containing small electronics and accessories. Within seconds a gentleman (I believe XXX)is his name, although I could be wrong) approached me saying "sorry, do you have a face covering?" I said "no, I'm exempt". He went on to say "sorry, not in here." I asked him if they operate under the law as a registered company. He asked me to leave. I went on to notify him he's breaking the law when he asked me again to leave. He became more and more aggressive saying "I asked you 5 times to leave. I am asking you now the sixth time." I replied: "I'm leaving. Have a good day! See you in court." 7 minutes later I stood in the door, asking another employee, a lady, (about 8 meters away if they sell the 12V to 5V adapters). The same man approached me again asking me to leave the building. I asked him if he is ready to provide reasonable accommodation or is he refusing service. He said he is refusing service "100%". The policy regarding the wearing of face coverings they had on the door at the time of the incident clearly states, among others, "not suitable for under 13's or those who have difficulty wearing them." The sign next it to said ‘We are open’.

The Complainant re-iterated in evidence what was stated in his submission with added sworn oral  evidence  that he had produced a medical certificate from his GP stating  that he  suffered severe anxiety when wearing a face mask. This certificate was exhibited at the hearing.

Under cross-examination, the Complainant  stated that he could not remember at what stage of the interaction with staff was the certificate presented by him.

Mr Leo O’Callaghan gave evidence under affirmation. He stated he had been Managing Director of the Respondent firm for 37 years until financial difficulties led it to be wound up.

He was not present on the day but had viewed CCTV footage which showed that the Complainant had , at no stage of the interaction with staff,  produced a medical certificate. He stated that the CCTV had been wiped because the premises were  now hosting a different business.

In  cross-examination the witness accepted that he could not recall the wording of the sign at the door of the premises but was adamant that it did not refer to under 13-year-olds.     

The issue for decision by me is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) and section 4  of the Equal Status Acts, 2000-2015 (the Acts). The applicable sections are as follows:

Section 2 of the Acts 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 ‘Reasonable Accommodation’ provision in the Acts, 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.

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.

The foregoing section establishes that 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.

I am satisfied, based on the medical certificate exhibited by the Complainant that he had a disability. However, the case pivots around the central issue of whether the Respondent’s staff were aware of the disability at the material time. The Complainant, rather inexplicably, omitted this salient detail from his written submission.   However, in sworn oral evidence, he stated that he had produced the certificate to staff at the time. When pressed, the Complainant could not remember at what stage he produced the certificate. I found this position to be untenable. The Complainant in his submission, as well as in evidence before this point,  gave  a very precise account of what happened -  going so far as determine that he waited for seven minutes outside the shop. However, his account of the most important detail lacked any precision.  Furthermore, the Respondent’s previous director gave very cogent evidence of watching the CCTV footage  of the incident  and was adamant that no such certificate was produced. I found the Complainant’s evidence to be unconvincing  therefore I find, on the balance of probabilities, that he did not produce the relevant certificate nor otherwise inform the Respondent’s staff of the nature of his disability.

I have considered  the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing. I find that the Complainant has not established a prima facie case of discrimination on the basis  that the Respondent was not put on notice of the Complainant’s disability. Therefore, I find that the Complainant was not discriminated against by the Respondent under section 3, nor 4 of the Acts.

I have considered all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing. I find that the Complainant has not established a prima facie case of discrimination on the basis  that the Respondent was not put on notice of the Complainant’s disability. Therefore, I find that the Complainant was not discriminated against by the Respondent under section 3 , nor section 4, of  the Equal Status  Acts 2000 -2015.

Equal Status Act, Mask Wearing, Covid-19, Disability.