Complainant

Respondent

Anonymised Parties

A Customer

A Retail Premises

Representatives

In person

 Thomas Harnedy B.L. instructed by Coonan Morgan 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-00047381-001

29/11/2021

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

CA-00047392-001

29/11/2021

This is a disability discrimination complaint brought under the Equal Status Act 2000 arising from an incident on 28 August 2021 whereby the Complainant, a customer of the Respondent was requested to wear a face mask while in a retail premises, which the Complainant was unable to comply with because he has a disability, in the form of a chronic asthma.

Late Adjournment Application

At the commencement of the hearing the Complainant - who until the week prior to the hearing was legally represented - requested that the hearing be adjourned because his solicitor was unable to attend the hearing. He said that his solicitor had already requested the WRC to adjourn the hearing (by email dated 28 October 2022, a week before the hearing) The solicitor’s request was made on two bases; to allow mediation take place and because the solicitor was conflicted with professional obligations elsewhere on the hearing date. The WRC had refused this request. The Complainant in his personal capacity repeated the request for an adjournment at the hearing.

The Respondent strongly objected to this late adjournment request submitting that no such request had been received by them in advance of the hearing. The Respondent had gone to considerable expense to instruct a solicitor and barrister who were present at the remote hearing alongside three witnesses (including a witness who no longer worked for the Respondent) who were all ready to give evidence. Furthermore, the Respondent were unaware of any suggestion that mediation take place and nor was the Respondent agreeable to mediation.  

Having considered the request for an adjournment and the objections made to that and bearing in mind the potential risk of prejudice to both parties, the Adjudicator decided that the hearing should proceed but in doing so, the Adjudicator provided the Complainant with an assurance that she would ensure that an equality of arms between the parties would be maintained throughout the Adjudication. She would take steps to ensure that the Complainant understood the process and the applicable legal tests (in Equal Status complaints involving face-coverings in retail settings) would be fully explained so that the Complainant would not be prejudiced. She directed a half hour break in advance of the hearing of any evidence to ensure that the Complainant had an opportunity to consider the Respondent’s submission bundle, which the Complainant was sent on 28 October 2022.

Anonymization of Parties

At the completion of the evidence, given that the evidence included medical certificates pertaining to the Complainant’s disability – and given that the Respondent did not object to the anonymization of the parties - the Adjudicator decided that in order to protect the privacy of the Complainant, the names of the parties would not be identified in the decision that would be published on the website.

Jurisdiction

The Respondent accepted that an ES1 form had been received by them within two months of the alleged breach and that the complaint was brought within 6 months of the alleged breach. No other jurisdictional matters arose.

Duplicate Complaints

Two complaints were brought once of which was a duplicate of the first. The Complainant accepted that the second complaint, CA-00047392-001 should be withdrawn.

Evidence of the Complainant

The Complainant gave evidence under Affirmation.

On 28 August 2021 the Complainant attended the Respondent store to buy weed-killer. He accepts that at the entrance to the premises there was signage indicating that face coverings should be worn to comply with Government regulations on the wearing of face coverings in retail settings.

The Complainant was a regular customer of the store.

The Manager who was on till-duty that day would have recognised him.  

When the Complainant went into the shop, he was not wearing a mask. This was because he has chronic asthma and is unable to breathe if he wears a mask. The Complainant asked the Manager where he could find weed-killer and the Manager brought him to the area where the weed killer was located and thereafter returned to the till. The Manager said nothing to him then about him not wearing a mask.

When he was looking at products a Shop Assistant came over to the Complainant and said, “You can’t be in here without a mask.” The Complainant replied that he was medically exempt. The Shop Assistant laughed and repeated that he had to wear a mask, or he would have to leave. He told him that a manager could be got for him, but the Complainant said that there was no need. The Shop Assistant acted disrespectfully, in a manner that suggested he did not believe the Complainant. The Complainant then picked up the weedkiller and moved towards the till at which the Manager was working. The Shop Assistant followed and as the Complainant was about to purchase the product at the till when the Shop Assistant told the Manager that the Complainant was not wearing a mask and that he should not be in the shop. The Manager then looked up and told the Complainant that he could serve him outside. The Complainant repeated that he had a medical exemption however he was extremely embarrassed about this confrontation given that it was at the front of the shop and that there were other customers nearby. The Manager said that they’d heard all that before about people claiming to have medical exemptions and that he could call the guards, which the Complainant became suddenly very alarmed by. The Complainant was gravely affronted by this treatment and this singling him out. The suggestion that he leave or be served outside made him feel like he was a piece of rubbish. He was literally about to pay for the product, it would have made no difference just to allow him complete the sale and leave. If the Sales Assistant had not intervened he believes that the Manager would have just allowed him to pay and leave.

The Complainant submitted that this incident was a discriminatory act in that the Respondent failed to make reasonable accommodation for his disability. He was not asked for proof of disability by either the Shop Assistant or the Manager. He was refused service at the till. Everyone else was permitted to be served inside at the till.  He was made feel different or “less than” a customer without a disability, who was capable of wearing a mask.

Under cross examination the Complainant said as follows:

He had a medical exemption, in the form of two doctor’s letters which certified that he had chronic asthma and was medically exempt from wearing a mask. He provided these letters as evidence to the WRC. He was not asked to provide proof of exemption during the incident but accepted that he did not have these letters on him at the time.

He accepted that the shop signage included face masks and other face coverings, eg visors. He said that he was able to wear a visor but was not asked to do that by the Shop Assistant, he was only told that he needed to wear a mask, which he was incapable of wearing. He accepts that the store provided free face masks but not visors. If he had been asked to wear a visor or had been given a visor, he would have worn one.

He said that he had been shopping in this shop for years and was humiliated by this rude and unequal treatment. He was medically exempt but, unlike all the other shops he went into, the Respondent did not accept his entitlement not to wear a mask.  By suggesting that he shop outside he was made to feel like he was less than other shoppers. Altogether it was a terrible and unforgettable experience.

Complainant’s Legal Submissions

The Complainant submitted that SI 296/2020 permitted an exemption from wearing a face mask in a retail setting if the person is in receipt of a medical exemption, which the Complainant was.

The insistence by the Respondent staff that the Complainant wear a mask or leave the premises was  a discriminatory act because it failed to take account or make reasonable accommodation for his medically certified disability.

Evidence of the Shop Assistant

The Respondent’s former Shop Assistant gave evidence under Affirmation as follows:

He was working in the Respondent’s premises on 28 August 2021. The mandatory guidelines on the wearing of face coverings were in force at that time.

When on the shop floor he noticed that the Complainant was not wearing a face mask and he asked him if he had one to which the Complainant responded that he was medically exempt. He explained to the Complainant that the store policy was that everyone had to wear a face mask or be served outside. Unlike what the Complainant contends, he did not laugh at the Complainant. He left the Complainant and watched him take the product to the till. He went over to the Manager who was working at the till and told the Manager that the Complainant had refused to wear a face mask and that he should be served outside. The Manager looked up and repeated to the Complainant that he could be served outside. The Complainant then left the shop without purchasing the product.

The Store Assistant gave evidence that the store policy was to offer customers a face mask (if they have forgotten to wear one) or else offer to serve them outside if they are unable to wear a mask. If a customer produced proof of medical-exemption it was then up to manager to deal with that, but the Complainant had not produced any such evidence. The Complainant was not refused service, he was offered an alternative service by allowing him to purchase the product outside the shop.

The Complainant cross examined the Shop Assistant. He put the following as being his case:

He was not asked by the Shop Assistant (or any other staff) for proof of his medical exemption - which the Shop Assistant accepted was the case.

The Shop Assistant offered for him to speak to a manager which the Complainant declined - which the Shop Assistant accepted he had.

The Shop Assistant told him he would need to be served outside - which the Shop Assistant accepted.

At the till the Complainant told the Manager that he had a medical exemption to which the Manager responded by suggesting that he call the Gardai. The Manager did not ask him for proof of disability. Both the Shop Assistant and the Manager suggested that the sale be conducted outside, so this was suggested to him twice.

Evidence of the Store Manager

The Store Manager gave evidence under Affirmation as follows:

He was working as duty manager on 28 August 2021 which was a Saturday. He cannot remember bringing the Complainant to the area where the weed killer was located, but accepts that he may have done so. He does not remember that the Complainant was not wearing a mask on his way into the shop or when he brought him to the weed-killer section.

The Manager remembers more clearly what happened subsequently, at the till.

The Complainant came to the till and was attempting to purchase weedkiller when the Shop Assistant came towards them both and told the Manager that the Complainant was not wearing a mask and should be served outside. Until then the Manager had been looking down had not realised that the Complainant was not wearing a mask.  He then advised the Complainant that he could complete the purchase outside. By “outside” this meant in the wind-break foyer. This was because the credit card machine worked out there and this was often done for customers who did not want to go into the shop or who were unable to wear masks. He doesn’t remember the Complainant saying anything about a medical exemption but did not disagree if the Complainant said he did. He never laughed at the Complainant.

He accepts that he suggested ringing the Gardai, but this was only because that it what other customers had asked for previously. He did not mean it as a threat. There was no big confrontation or anything. It was just a conversation. When the Complainant was asked to buy the product outside, he just refused to do so and left.

The Complainant’s wife cross-examined the Manager as follows:

The word “foyer” was never mentioned, the Manager suggested that the purchase be done outside, not in a foyer, to which the Manager answered that he could not recall which word was used but he had meant the foyer.

The Complainant had told him he was medically exempt, to which the Manager said he could not recall this but accepts as being true if the Complainant says so.

Evidence of the Shop Owner

The Shop Owner gave evidence under Affirmation as follows:

The guidelines in place changed through-out the course of the pandemic. This required social distancing, signage, hand sanitiser and masks to be provided and when the mandatory retail guidelines were put in place, the Shop Owner was very careful about complying with them.

He was well-aware of the repercussions for not doing so and that he could be prosecuted for not complying.

Visors were as acceptable as masks. Indeed some of his staff - who suffered from respiratory conditions - wore visors, because they could not wear a mask. The signage at the shop entrance was for face coverings. This clearly - and visually - indicated that visors were allowable as well as masks. If the Complainant had worn a visor, that would have complied with the guidelines and there would have been no problem.  His staff were given regular updates and training about how to deal with customers and what they were entitled to ask or what they should offer by way of shopping alternatives. The two staff in question dealt with the Complainant precisely as they had been trained to do.

Before this incident the Small Firms Association had advised him against asking for proof of medical exemption from a customer but advised that if a person was claiming such exemption they should be offered an alternative way of shopping, eg purchase outside or online.

The Shop Owner was cross examined by the Complainant’s wife as follows:

The Shop Owner was not present that day in the shop, which he accepted.

The Shop Owner was placing reliance on section 4 of SI 296/2020 but not section 5 which permits the non-wearing of a face covering if a person is medically exempt.

SI 296/2020 permits exemption for mask wearing precisely to ensure that persons with a disability are not treated less that those without a disability. It was introduced to ensure that persons with a disability do not feel different, like outcasts. Her husband, the Complainant was assiduous in doing antigen tests each week to ensure that he was not Covid Positive. He fully understood the need for compliance and the responsibility that he owed to others in his community.

The Shop Owner said the Small Firms Association, that Gardai and the HSE all told him that the shop protocols applied the Government guidelines correctly. The Shop Owner could not understand why the Complainant had not just worn a face Shield/Visor, if he was unable to wear a mask. It was not up to the shop to provide him with one. This was August 2021, ie well into the pandemic, if the Complainant was able to wear a face Visor, he should have worn one on that day. It was not up to his staff to advise him about specifically wearing a visor or a mask, it was up to him to arrange this.  The signage at the entrance to the shop clearly illustrated that a face Visor/Shield was acceptable as well as a mask. The Shop Owner could not understand the complaint being made. The Shop staff were obliged to apply the guidelines and that was what they did. 

Legal Submissions of the Respondent

Relying on WRC authorities on Equal Status and face mask wearing including Adj 33208 the Respondent representative submitted that the test for discrimination under the Equal Status Acts was not the same test as to whether a person was entitled to a defence to enforcement proceedings brought under SI 296/2020.

The test in this case to be applied is three-fold:

(a)    Did the Complainant have a disability?

(b)    Did the Respondent, at the time, know he had a disability?

(c)     Was he refused a service/ discriminated against because of his disability?

In respect of (a) while it would have been preferable that the doctor to have been present at the Adjudication hearing to prove the content of the certificates, the Respondent did not strongly dispute the fact that the Complainant had a disability.

In respect of (b) even on the Complainant’s own evidence he had not provided the Respondent with evidence of this disability on the date in question and as such he could not prove that the Respondent knew that he had a disability.

Lastly in respect of (c) the Respondent submitted three defence points (i) the Complainant had never explained why he did not wear a Visor on the date in question (ii) the Complainant was provided with a service, albeit outside the body of the shop but inside the wind lobby or foyer of the shop and (iii) this was reasonable in all the circumstances given the pandemic, the risk of infection to staff and other customers that would be caused by permitting a person to not comply with the mandatory guidelines. Were an exception to be made by the Respondent this could have resulted in the shop being prosecuted under SI 296/2020. And while the Complainant has failed to discharge the onus of proving that a prohibited act has occurred, even if he had, Section 4 (4) of the Equal Status Act 2000 allows different treatment of a person with a disability if such different treatment is reasonably necessary to prevent harm to the person or to others.  

In this Adjudication, while aspects of the factual evidence are in dispute, that which is salient, is largely not in dispute.

This complaint is not whether the Complainant was poorly treated by the Respondent, an assertion which is made by the Complainant and disputed by the Respondent. Rather it is, was the Complainant adversely treated by the Respondent (by a refusal to serve him) because of his disability.

Hearing in private

Under section 25 (2) of the Equal Status Acts 2000-21 I determined that this hearing should be conducted in private due to the existence of ‘special circumstances.’ The Complainant’s medical condition of chronic asthma is a serious one and is a matter that he wishes to keep private. Disclosure of this medical condition in the media or in a published decision on the WRC website could negatively impact his professional and personal life.

Substantive Findings and Conclusions

As in some other similar Equal Status adjudications on face mask wearing, there is a misunderstanding at the heart of this complaint.

This case discrimination complaint is brought under the Equal Status Acts 2000- 2021 arising from an alleged refusal to provide a service (in this case, shopping) to the Complainant, on the basis of a prohibited ground, in this case, a disability (chronic asthma which prevents the Complainant from wearing a mask.) The Complainant also contends that the Respondent failed to make reasonable accommodation for his disability.

The first hurdle in any discrimination case, that the Complainant is required to prove, is that he has a disability and that because of that disability that he was treated less favourably by the Respondent than a person in the same situation as she was, who did not have a disability.

This is different from whether or not he had a defence to a charge that he was in breach of government rules on the wearing of face masks in a public (including retail) setting under SI 296/2020.

Many equal status complaints have erroneously conflated these two matters.

To clarify, just because a customer with a disability may be entitled to assert a defence of reasonable excuse if they are charged (in proceedings brought under SI 296/2020)  with a failure to wear a mask, does not mean that, a retailer’s requirement or enforcement that they wear a mask, which at the relevant time was mandatory, is evidence, of itself, that a customer has been discriminated against or that there has been a failure to make reasonable accommodation for them.

The three questions that arise for consideration in this Equal Status Act Adjudication are:

(d)    Did the Complainant have a disability?

(e)    Did the Respondent, at the material time, know he had a disability?

(f)      Was he refused a service/ discriminated against because of his disability?

I am satisfied that the doctor’s letters furnished by the Complainant during the Adjudication Hearing are evidence that prior to the incident on 28 August 2021 the Complainant had a disability and was medically exempt from wearing a face mask. This fact was certified by his doctor. He would have allowed to rely on this certification had enforcement proceedings pursuant to SI 296/2020 been brought against him.

However, this is not an Adjudication on whether he was permitted to wear a face mask or not in enforcement proceedings under SI 296/2020. This is a discrimination complaint under Equal Status Acts under which the Complainant is under an obligation to prove that a prohibited/discriminatory act has occurred. In order to succeed in this complaint, the Complainant is obliged to prove that the Respondent’s conduct (in requiring him to wear a face mask or alternatively, to purchase the product either outside or in the wind-breaker foyer – as opposed to at the till) is prima facie proof of discrimination. It is a different test to SI 296/2020 enforcement proceedings.

Also for the Respondent’s conduct to amount to an act of discrimination the Complainant must prove that the Respondent had knowledge of the Complainant’s disability at the time of the alleged breach. And knowledge of an assertion of disability is not the same as knowledge of actual disability.

On this issue, the evidence of the parties did not differ or rather did not differ in a way that makes a difference.

The Complainant’s evidence was that he told the Respondent he was medically exempt but was no more specific than that and that he did not provide the Respondent with proof of his disability. He says that they did not ask for such proof, but the onus lies on the Complainant to prove that the Respondent was aware of his disability, the onus does not lie on the Respondent to request such proof. It is up to the Complainant to show, if he wishes to prove their knowledge of his disability, (which is a necessary proof0 that the Respondent was provided with this evidence.   Given the Complainant’s own account of what happened, which is not disputed, the most that he can prove is that he asserted to the Respondent that he had a disability, as opposed providing them with evidence which proved his disability. Had he provided the staff with the proof of his certified disability (which he accepts he did not have with him on the day in question) it would be more difficult for the Respondent to contend that they had no knowledge of the actual disability, as opposed to an assertion of same.

In response to this the Complainant contends that he was not obliged to disclose such private information to the Respondent and to require him to do so would be in breach of privacy / GDPR laws. However if the Complainant wishes to establish that the Respondent knew of his disability (which he needs to in this complaint) it is in his interests to disclose this evidence, as otherwise his assertion of disability remains only that, an assertion but not proof of his disability.

I am satisfied therefore that the Respondent was not made aware of the Complainant’s disability on the date in question and on that basis, could not be said to have discriminated against the Complainant on grounds of his disability or could not be said to have failed to reasonably accommodate the Complainant’s disability.

In an Equal Status complaint, as in any discrimination complaint, the Complainant is obliged to prove facts from which a reasonable inference of discrimination can be found. Proof of disability and proof that the Respondent was aware of the disability at the time that the alleged breach occurred are fundamental and necessary proofs. In this complaint the Complainant has failed to meet this obligation.

For this reason as the second of the three criteria has not been complied with this complaint cannot succeed. However, for the sake of completeness moving to the third criteria I also find that the Complainant was not refused service.

I accept that the Complainant was provided with an alternative and different service, namely purchasing the product outside the shop or in the wind lobby. I accept that this is a different service to inside the shop but I do not accept that it is a lesser service given the circumstances that prevailed at the time. Insofar as the treatment was different, it still constituted the provision of a service and this was reasonably necessary to prevent harm by risk of infection to others.

In reaching this finding I am mindful of section 4(4) of the Equal Status Act 2000 which states that:

“Where a person has a disability that in the circumstances could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”

I am not persuaded that the Complainant was refused a service. However even if the Respondent’s actions did constitute a refusal of a service (which I have found they did not) I consider that the different treatment of serving him outside the shop as opposed to within the shop was reasonably necessary to prevent harm. Not only harm in terms of risk of infection - although that was the Respondent’s main consideration, but harm also in terms of the undermining of the collective response to the pandemic. Other customers unaware of the Complainant’s disability or his conscientious self-testing regime, on seeing the Complainant not wearing a face covering in the shop may quite reasonably have believed that the shop was no longer enforcing the mandatory guidelines, which was not the case.

I found the evidence of the Complainant to be candid and I fully accept that he felt affronted by what happened on the day however no explanation was provided as to why he did not wear a Visor/face shield on the day in question. I find that for the reasons set out above that the Complainant has not proven that the Respondent acted in manner which was discriminatory or failed to make reasonable accommodation for his disability.  

For the above reasons I find this complaint is not well founded.

CA-00047381-001 This complaint is not well-founded. The Respondent did not engage in prohibited conduct

CA-00047381-002: This complaint is withdrawn

Equal Status – disability - face masks