Complainant

Respondent

Parties

Sabrina  McKeever

Boots

Representatives

  Self-representation

Kate Conneely B.L. instructed by Miley & Miley LLP 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-00043988-001

10/05/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Both the complainant and a witness for the respondent (a pharmacist) gave their evidence under affirmation.  Both witnesses were cross-examined by the opposing side in the complaint.

A brief submission (4 page) was received from the respondent the day before the hearing and a short pause was taken to allow the complainant to consider the submission further before the hearing proceeded.

The complainant submitted that she went into the respondent’s premises with the intention of having her prescription filled.  The complainant submitted that she can’t wear a mask as she is exempt from wearing one.

The complainant submitted that she was told to go outside to wait for her prescription.  She submitted that she was humiliated and demoralised and that by refusing her service, the respondent was endangering her life.  The complainant submitted that if she was a member of the travelling community or had a different coloured skin, she would not have been treated this way.

The complainant submitted that she complied with the Covid legislation, and that the respondent’s staff was aware that she had a disability since 2011.

The respondent submitted that the complainant was not refused service, in fact she was provided with service that went over and above that required by being provided with a prioritised service in the filling of her prescription.

The respondent submitted that the complainant had provided no evidence of having a disability that meant that she was exempt from complying with the protocols regarding mask wearing.

The respondent submitted that the complainant was asked to wait outside its premises while her prescription therefore she was offered an alternative service.

The respondent submitted that the caselaw is very clear on this matter.  A complainant is required to establish to the satisfaction of the Adjudication Officer that she has a disability.  She must also establish that the respondent is aware of the disability and finally the onus is on the complainant to demonstrate that she was treated less favourably than others without the disability would be treated to be successful with a complaint under the Equal Status Acts.

The respondent submitted that the complainant has provided no evidence, either to the respondent or to the WRC, of the disability that would indicate that she could not wear a mask.

The complainant’s case is that she was discriminated against by reason of her disability and that the respondent treated her unlawfully by discriminating against her in the provision of services.

The complainant stated that she had a disability.  She confirmed that she did not inform the complainant in writing that she had a disability but stated that they were aware that she had a disability since 2011 when she discussed her illnesses with a pharmacist.  The complainant did not provide evidence other than oral testimony of having a disability to the hearing. 

The complainant did not outline how the two general categories of illness she noted in her testimony amounted to a disability simply stating that she was exempt from wearing a mask.  She noted that this was sufficient to satisfy the requirements of Statutory Instrument 296/2020.

The instant complaint is taken under Section 21 of the Equal Status Act, 2000 (as amended).  As noted by the respondent, the Act of 2000 contains the following provisions:

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 3(2)(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 2 of 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;

Having regard to the foregoing submissions I note that the first element for the complaint to establish is the existence of a disability under the Act and secondly is required to establish that she was treated less favourably than another person, who did not have a disability, would be treated.

As regards the first element of the Act, the existence of a disability, the complainant stated that she had a disability but provided no supporting documentation or witness testimony in support of this contention.  She also confirmed that she did not provide evidence of such a disability to the respondent.  Although the complainant suggested that the respondent was on notice of a disability given that she spoke to a pharmacist in 2011, I am not satisfied that this amounts to informing the respondent of the existence of a disability that rendered her unable to wear a face covering in accordance with the Government guidelines in place during the Covid pandemic.

Having regard to the evidence presented to me, I am not satisfied that the complainant has established that she has a disability that would bring her within the definitions outlined in the Act.

Notwithstanding the foregoing, I note that the complainant was told to wait outside for her medication and stated that she was never asked to wear a mask.  It is difficult to conclude that she was not asked to wear a mask when she indicated that she was exempt and carried a card indicating this.  She also indicated that she proffered the card to the respondent’s representative on the day in question indicating that she was exempt.  If she was not asked to wear a mask, what was she indicating she was exempt from?  On the basis of the evidence of the complainant I conclude that she was asked to wear a mask.

The evidence of the respondent is that they were following the governmental guidelines on mask wearing.  The evidence of the complainant is that she was asked to wait outside, although it is her contention that she was not asked to do so in a polite fashion.  The complainant indicated that she did not tell the respondents staff that she had a disability but rather that she was exempt.

Having regard to the evidence presented to me, it appears that the respondent’s staff sought to have anybody who was not wearing a mask to do so.  I am satisfied that this is unrelated to the existence of a disability but rather follows the Government guidelines for dealing with all members of the public.  Accordingly, I conclude the respondent treated all persons not wearing a mask in the same fashion and did not treat the complainant any differently on the basis of her alleged disability.

Section 38A(1) of the Equal Status Act, 2000 outlines that “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.” 

Having regard to Section 38A(1), I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred. 

Having regard to all the written and oral evidence presented, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – disability – discriminatory treatment – not established – no prohibited conduct