Complainant

Respondent

Parties

John  Ryan

Gerry Ellis and Sons Limited t/a Fresh Today Extra

Representatives

None

 None

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045824-001

25/08/2021

This incident took place on 29 June 2021. The Complainant served an ES1 form on the Respondent on 4 July 2021. He filed his complaint with the WRC on 25 August 2021.

The complainant's case is that he was discriminated in the provision of a service in the Respondents shop. He explained that he is unable to wear a face covering because he suffers from panic attacks.  He explained that he suffers severe distress when he wore one. 

His evidence was that he attended at the Respondent's store during his lunchtime break to purchase fruit. He wasn't wearing a face mask, but his friend was wearing a face mask. There were other customers in the store at the time.

While browsing, he was approached by a supervisor who asked him to “wear a mask”.  He was told to “get out of the store if he didn’t wear a mask”.  He was asked if he had a letter of exemption from wearing a mask. He advised her no, he didn't and referenced his constitutional rights.

His evidence was that he was not offered a solution and that he walked out of the store when the supervisor telephoned the Gardai. He found the incident embarrassing. He confirmed that he left because he didn't want to cause a scene. He submitted that what the Gardai were telling the shop owner was not the law. The law at the time was the statutory instrument SI 296 of 2020.

The Complainant explained that he quoted the SI to the supervisor on the day.

Under cross examination he explained that not many medical personnel would provide letters of exemption. He didn't have a self-declaration form. The complainant read into the record a letter from Dr Anne McCluskey dated 11 August 2021. He confirmed that she was a GP in Derry.

The Complainant explained that he didn't have a problem not wearing a mask in other stores. He submitted that only a manager could ask him if he was exempt from wearing a face mask.

The respondent owner and supervisor gave evidence.

The supervisor explained that the respondent’s policy was to ask any person attending the shop not wearing a mask, if they had forgotten to put on their face mask. If they had, they would offer the customer a mask. If the customer advised they were exempt from wearing a mask, they were requested to produce a letter of exemption. The supervisor explained that this policy was based on advice received from the local Gardai.  The Gardai had also requested them to make contact if any customer who didn’t have an exemption was not wearing a mask. 

The witnesses explained that they were trying to keep everyone safe. The store had been inspected by the Gardai on numerous occasions checking for compliance with the Covid restrictions.

They explained that the Complainant walked out of the store when the supervisor rang the Gardai. 

The Respondents position that they would not enquire further if the customer had a letter of exemption.

The supervisor gave evidence that she didn't want to know what was wrong with the Complainant. Covid had been around for a long time, and she expected him to have a letter of exemption from wearing a mask.

She confirmed that she did call the Gardai, but she cancelled the call in the end.

She explained that after the altercation, the Complainant left the shop. Her evidence was that she didn’t ask him to leave. She explained there was nobody else around and she submitted that the Complainant couldn't have been embarrassed.

The respondent witnesses were very annoyed with the complaint. They explained that they were very stressed at the time of Covid and were only trying to do their jobs. They explained that there was a lack of information provided to retailers and they obtained information from the Gardai and the media.

The supervisor explained that she never asked the Complainant to leave the shop on the day in question. She said she didn't manhandle him out of the shop. She did agree she rang the Gardai. She submitted that she was only following government guidelines.

I find that the complainant has complied with the notification requirements.

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 he was, who did not have a disability.

This is different from whether 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.

It has been identified by other Adjudication Officers that in many similar equal status cases, complainants have unfortunately conflated these two matters. Just because someone with a disability may be entitled to assert a defence of reasonable excuse if he/she was charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask, is evidence that they have been discriminated against.  See ADJ-00033208

The questions that arise for consideration in this case are:

(a)    Did the Complainant have a disability?

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

(c)     Was he discriminated against for reason of his disability?

Discrimination on the “disability” ground occurs where there is less favourable treatment of one person compared to another person because one person has a disability and the other either is not or is a person with a different disability.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (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”).

The sections of the Equal Status Act which describe discrimination need to be outlined:

“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 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.

“discriminate” means to discriminate within the meaning of section 3(1) or 4(1)

Section 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) …

The burden of proof is set out in Section 38A of the Act which provides 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”.

The first requirement in a case involving discrimination is that the Complainant who is claiming discrimination on the grounds of disability must be able to provide facts to which will satisfy at least one of the criteria which define disability under the Act.  As has been pointed out in earlier cases, in many cases a disability will not be known or obvious.  To bring a claim of discrimination on the ground of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, the complainant must be able to provide evidence to support that claim. 

In this case, evidence was given by the Complainant that he informed the Respondent had an exemption from wearing a face covering required under SI 296 of 2020 but he didn’t identify on the day in question what basis he was claiming the exemption.  He posed the question to the shop supervisor “how would she like if he asked her if something was wrong with her?”.

He confirmed at the hearing that he didn’t wear a mask because he suffered from panic attacks and since the date of the incident, he has obtained a medical certificate from a GP based in Northern Ireland. At the hearing he said, "and a lot of GPs wouldn't give a letter of exemption".

Post the hearing, this medical evidence has been queried by the Respondent. It was pointed out that the GP was not of good standing and had been suspended for 18 months pending an investigation into allegations of Covid – 19 misinformation.

An online search of the named doctor reported that she retired from practice in 2019 but returned to work for the NHS in 2020 to help in the Covid crisis.  In August 2021 the Health and Social Care Board suspended her as a “precautionary measure” while a full investigation was carried out. In September 2021 the General Medical Council revealed Dr McCloskey was “interim suspended” following a hearing on 21 September 2021 at the Medical Practitioners Tribunal Service (MPTS).

At the hearing, I expressed my surprise that the Complainant who was resident and working in Longford would have obtained a medical certificate from a GP outside the jurisdiction. His response was that he “travelled all around and a lot of GPs wouldn’t give any letters around here. It doesn’t matter what excuse you had”.

The Respondents disputed this at the hearing and advised that they had many customers with exemption certificates. 

Post the hearing the Complainant indicated that he already knew about the suspension of the GP.  He wrote “this has nothing to do with the situation that happened at the time as I already stated according to Statutory Instrument 296 of 2020 section 5 subsection 2, under reasonable excuses, it states severe distress which I suffer from. I have no Family Doctor in Longford.”

I have considered the evidence presented to me both orally and in writing. The information obtained in relation to the GP goes to the Complainant's credibility.

I find that the Complainant explicitly indicated that he did not wish to discuss the nature of the exemption on which he relied with the Supervisor on the 29 June 2021. I note that the Statutory Instrument lists 7 grounds on which a person has a reasonable excuse for not wearing a face covering. 

While the bar for qualification of a medical condition as a disability is quite low, in view of the information provided to me as regard the GP and her suspension, I cannot accept her medical report as evidence of the extent and the duration of the Complainant’s illness.

I find that the Complainant has not established a prima facie case that he had a disability within the meaning of the Act.

Also having regard to the totality of the evidence adduced, I find that the Complainant did not notify the Respondent he had a disability within the meaning of Section 2(1) of the Acts.

Accordingly, I find that the Complainant was not discriminated against by the Respondent on grounds of disability.

I find that this case is not well founded.

Face mask. Disability.  Medical Certificate.