Complainant

Respondent

Anonymised Parties

A Complainant

A Shop

Representatives

Terry Gorry & Co. Solicitors

Represented by Florence Hovenden Kelly BL, instructed by Rennick Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00043642-001

17/04/2021

The complainant claims that she was discriminated against on grounds of disability when her claim of an exemption from the Covid Regulations regarding the wearing of a facemask was rejected by the manager in the respondent store. The complainant further claims that she was discriminated against by the failure of the respondent to provide reasonable accommodation for a disability.

The complainant alleges that on 7 January 2021, she entered the respondent store to purchase food items. She states that she was approached by the manager who informed her that she was not allowed in the shop without a face covering to which she states she explained to him that she cannot wear one. She states that he said to her “get out of my shop, you will not be served”. She states that she tried to offer an explanation as to why she could not wear a face covering but the manager would not listen.

The complainant states that following this incident she called to the Garda station and was informed by them that the store must serve her if she has genuine reasons to not wear a face covering and further stated that they have no authority to prosecute shop owners in such situations.

The complainant states that subsequently she went into the store and asked for the names of manager, owner and contact for Musgraves. The complainant states that the manager gave his name as Shane Lynch and it is only after she got the respondent’s submission that she found out the managers name was Mr. Breen.

The complainant states that she went into the store on another occasion to buy stamps at the Post Office within the store. She states that the manager approached her and asked her to put on a face covering or leave the premises. The complainant states that she showed him her lanyard which refers to a hidden disability. She states that she tried to explain that she has a hidden disability and offered to show him a letter from her GP. She states that the store manager stated he did not care what she had and requested the Post Office staff not to serve her.

The complainant states that in relation to her disability, she has a pacemaker since October 2015, hepatitis B for over 20 years, fibromyalgia (official diagnosis in 2019) and rheumatoid arthritis since 2020. She states that claustrophobia has never been officially diagnosed but that she has it since 2004.   

The respondent submits that on 7 January 2021, the store manager Mr. Breen noticed the complainant was not wearing a mask and approached her and politely stated that she needed to have a mask on while in the store. She responded by stating that she was exempt from wearing a mask and walked past. She did not give an explanation as to why she was exempt. Again she was informed that she must have a mask on and if she cannot wear one, she must have some kind of face covering/mask/visor. It was submitted that the complainant shouted at the manager and said she was going to the Gardai and the store manager stated that was fine with him.

On 9 February 2021, the store manager saw the complainant coming down towards the Post Office within the store. The store manager also noticed that when the complainant entered the store, she did not use the hand sanitiser. Again the store manager informed the complainant of the store policy, however she became argumentative. The store manager stated that on this occasion he noticed that the complainant was wearing a lanyard around her neck however she did not offer an explanation for same. The store manager stated that she never discussed or showed to him “a letter from my GP” as stated in her ES1 form. She got in line for the Post Office and refused to leave the Store so he informed her that she would not be served without a face covering. The store manager stated that she continued to shout at him and made him feel very uncomfortable as he felt at risk of getting Covid.

The store manager stated that in addition to the above two dates, there was also a date between 7 and 9 January 2021 (he cannot recall exact date) that the complainant came into the store with no face mask/covering on. He states that the complainant approached him without adhering to the 2 metre rule and demanded/shouted at him to give her names of the manager, store owner and Musgrave Group details which he duly did. The store manager stated that this was entirely an unessential reason to come to the store as she did not come to purchase any goods and it could have been done over the telephone. Given what had happened previously, the store manager stated that he felt it was done just to antagonise him.

The store manager states that on both 7 January and 9 February, reasonable accommodations were offered such as that a staff member could bring her shopping out to her or have someone else do her shopping for her if she was not prepared to wear a face covering. The store manager also advised her that she could avail of the home delivery service.           

The respondent asserts that the complainant did not notify the respondent of any disability during any occasion at the respondent’s premises. It states that it was only made aware of a disability on receipt of the WRC complaint form. The respondent cites the caselaw regarding An Employer v A Worker EDA 1927 and although it relates to an employer/employee relationship is pertinent in the within matter. In that case, the Labour Court noted that the employee in that case had only identified a disability to his employer after his dismissal and that no medical evidence of a disability had been provided prior to dismissal and, therefore, the dismissal was not discriminatory. The respondent submits, in the within matter that the complainant cannot argue she was discriminated against on the grounds of a disability, when the respondent had no knowledge of a disability until the receipt of the WRC complaint form. 

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) 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.

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.

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 38A (1) provides that the burden of proof is: " 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." It 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. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

There is a conflict between the evidence proffered by the complainant and that of the respondent. Having carefully examined all of the evidence adduced, I prefer the evidence of the witnesses for the respondent as I found their evidence to be more cogent and convincing. I am cognisant of the oral testimony of the manager who stated that the complainant refused to use the hand sanitiser on entry into the store, did not maintain the 2metre distancing rule and shouted at him (demanding to be served on the basis that she was exempt from wearing a mask) coming into his personal space and his fear of getting the Covid virus. I note that while the complainant stated she was exempt from wearing a mask, no medical evidence was provided to the respondent at the material time to substantiate this assertion. In such circumstances, I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability.  

With regard to the allegation of failure to provide reasonable accommodation, I am satisfied that in the particular circumstances pertaining to this case, the store manager advised the complainant that a staff member could bring her shopping out to her or she could have someone else do her shopping for her if she was not prepared to wear a face mask/covering. The store manager also stated in testimony that he informed the complainant that she could avail of the home delivery service.

I should state that I found the respondent staff who gave testimony at the hearing, polite and respectful. They stated that their main concern was that of the protection of customers and staff at the height of the pandemic and ensuring compliance with the health and safety legislation in place at the material time.

Having carefully examined all the evidence adduced in the within case, I find that the complainant has failed to provide evidence in support of her assertion that she was treated less favourably by the respondent on grounds of a disability. In such circumstances I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability.   Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability.

In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision. I find that

(i)   the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3 of the Equal Status Acts, 2000-2015, and

(ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to provide reasonable accommodation

Equal Status Acts, face mask/covering, disability