Complainant

Respondent

Parties

George-Calin  Breban

Inchydoney Island Lodge and Spa Limited t/a Inchydoney Hotel

Representatives

  Self-Represented

 Self-Represented.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045976-001

05/09/2021

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

CA-00045993-001

06/09/2021

The Complainant submits that he was discriminated against on the grounds of his disability in that the Respondent failed to serve him ice creams and coffee at an outdoor food truck owned by the Respondent hotel when he refused to wear a mask. He further submits that the Respondent failed to reasonable accommodate his disability and further that he was victimised by the Respondent’s refusal to furnish him with CCTV footage of an interaction with the hotel management.

The Respondent denies all complaints in that it submits that it was following government guidelines regarding mask wearing at the time of the incident and that furthermore the Complainant did not disclose his disability at the time, nor did he seek reasonable accommodation.  The Respondent contends that the Complainant had trespassed upon the Respondent premises and subsequently sought footage of the incident, which was refused. The Respondent submits that this refusal was not grounded on the fact that the Complainant was pursuing a claim under the Equal Status Acts.     

Summary of the Complainant’s evidence:

The Complainant gave evidence on affirmation. On the 19th of March 2021 he drove together with his family to Inchydoney Island.  His two children and his wife wanted ice-cream, and he needed to have a coffee. He ordered from a female server in a food truck called the "Silver Surfer. She said that he had to wear a mask, handing him a box of masks in the process. He told the server he was medically exempt. A male server in the truck then said, “Sorry no mask, no service”. The Complainant. He asked for a company name and address and was directed towards the Respondent hotel. He turned on an audio and video recorder and went towards the hotel.  He found the doors to be locked. He met a gardener who mentioned something about a mask but pointed to an entrance. After he had gained entrance to the hotel, he was asked politely by a receptionist to wear a mask, he refused but requested to see the manager.  

He explained to the manager that he was refused service.  He explained that he found the Respondent policy discriminatory on the ground of disability and asked, "What are you going to do about it?".  The Manager then said: "So you weren't wearing a mask throughout this pandemic, have you?"  The Complainant said: "I'm not answering that question" The Manager said: "Well, our standard is you'll have to wear a mask". In reply to a question as to whether the Complainant was videoing the manager the Complainant answered in the positive.

The owner of the hotel then appeared and asked the Complainant to leave. The Owner asked about the Complainant’s disability, but the Complainant did not disclose the nature of the disability. The Complainant said he was making a complaint about the ‘Silver Surfer’ food truck. He stated that he had a certificate to show he had a disability but that the staff on the truck did not ask for it. The Complainant then left.

Once he arrived home, he submitted a Subject Access Request under article 15 of the General Data protection Regulation (GDPR) requesting the CCTV footage in which he appears for the time he was there to submit the complaint against the staff of Silver Surfer, for the purpose of evidence. A few days later he received a reply to his Subject Access Request, but without the footage, where the Owner implied that he had feigned a disability, calling the Complainant a "despicable coward".

The Complainant produced purported video footage of the incidents at the hearing. The Respondent objected to the showing of the footage on the basis that such footage had been taken without the staff members consent, who were very distressed by the Complaint’s behaviour. Nor was the Respondent given the footage in advance of the hearing. I asked for the transcript of the footage, but the Complainant had none. Given the legitimate objections of the Respondent and the fact that there was common case on the salient facts, I deemed that the showing of the footage was not necessary under the circumstances.

The Complainant admitted in cross examination that he had driven from his home in Dunmanway, via Clonakilty to the hotel when there were 5km. restrictions for non-essential travel during the Covid-19 pandemic. The Complainant stated that he thought that such restrictions were for those who were exercising only.

The Complainant’s Argument:

The Complainant submits that it would have taken very little or no effort to place three ice-creams and a coffee on the counter of an outdoor coffee kiosk, satisfying the provision of reasonable accommodation should they have not decided to act in a punitive manner.

The Complainant submits that when the Respondent chose not to provide him with CCTV data, while further implying that he feigned his disability and went so far in a communication as to describe him as a ‘despicable coward’, amounted to victimisation under the Act.

Summary of the evidence of the Owner of the Respondent Hotel:

The witness gave evidence on affirmation. He said he strove to keep the hotel as safe as possible during the pandemic. He retained 54 staff on the payroll and organised weekly antigen tests.

The witness received a report that the Complainant refused to wear a mask during the height of the pandemic, when looking for service at the food truck. He was offered one for free, but he was abusive and rude to the young female staff member working on the truck as well as during a further encounter with the General Manager when he had trespassed on the hotel property through a fire escape door. The witness then confronted the Complainant and asked him to put on a mask. The Complainant refused, saying he was exempt. When asked by the witness to produce proof of his exemption or the nature of the disability that restricted his mask wearing, the Complainant would not show any medical evidence nor disclose the nature of his disability.

In cross examination the witness admitted that in response to a request from the Complainant for CCTV footage of the interaction between him and persons in the hotel, he accused the Complainant of cowardice and of feigning his disability. In response to a question on how the witness might define someone being ‘rude and aggressive’, the witness replied that when that person leaves another person in tears after a verbal encounter, then he considered that to be rude and aggressive behaviour.

The Respondent Argument:

The Respondent submits that had the Complainant a genuine reason not to wear a mask, he would have accommodated him because he had been familiar with the rules and regulations.  The Respondent further submits that the Complainant deliberately chose to abuse staff, trespass aggressively  into a building closed to the public and looked to cause an incident. The Respondent describes the Complainant as an anti-mask campaigner who deliberately travelled over the 5km. limit applied at the time and who came ready prepared to video his interactions.  

On the complaint of victimisation relative to the non-release of video footage to the Complainant subsequent to the incidents in question, the Respondent submits that no footage would have been released to any individual, regardless of disability, who had trespassed on hotel property and filmed members of staff without their permission.

CA-00045976-001 – Discrimination.

The Complainant alleges that he was refused coffees and ice creams at a food truck owned by the Respondent and that this denial of goods and service was contrary to the Equal Status Acts 2000-2015 (the Acts) on the grounds of his disability. The Complainant further alleges that he was refused reasonable accommodation for his disability. There was no dispute that goods and services were denied to the Complainant, albeit the Respondent claims it was for not wearing a mask when required.   

The Applicable Law:

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.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant under equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

The Complainant must therefore first establish a prima facie case of discrimination in a twofold process that: (1) that he had a disability at the material time and  (2) he  was subject to discriminatory  treatment by virtue of his disability. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act i.e., that he has a disability, is not enough in itself to establish a claim of discrimination. As per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred, namely in this case that he was denied coffee and ice cream goods and services by virtue of his disability and furthermore that the Respondent did not afford him reasonable accommodation for his disability.

The Complainant exhibited a copy of a medical certificate at the hearing from his doctor dated 17 November 2020 which stated, “This is to certify that the above named suffers from severe anxiety on wearing a mask.” Significantly this was the first time that the Respondent owner had seen the certificate after giving uncontested evidence that he had asked for it from the Complainant at the material time. The Complainant accepted that he did not show the Respondent the certificate on the day, nor did he show it to the food truck staff and neither did he disclose the nature of his disability.  It is a corollary of equality law that the person who is allegedly engaging in prohibited conduct against a person with a disability must firstly be aware of the nature of the disability by a complainant, so as to have an opportunity, at the very least, to reasonably accommodate the disability. The mere declaration by the Complainant of exemption without offering further information as to the nature of the exemption effectively absolves the Respondent from an allegation of discrimination under the Acts. Having heard submissions and evidence on this issue, I am satisfied that the Complainant did not disclose his disability at the material time when ordering goods from the food truck.

The non-disclosure of disability and the pre-preparation of audio-visual equipment defeats any assertion by the Complainant that he set out to seek reasonable accommodation from the Respondent.  After hearing the relevant evidence and submissions in this case, I find that the Complainant has not established a prima facie case under section 38A of the Acts that (1) he was discriminated against in the denial of goods and services by the Respondent, nor (2) that he was denied reasonable accommodation for his disability.

CA-00045993-001: Victimisation.

 The Complainant submits that when he sought the CCTV footage from inside the Respondent hotel under Article 15 of GDPR, that the refusal was because he was taking a case under the Acts against the Respondent and that such refusal constituted discrimination under the Acts.

Victimisation is described at 3(2)(j) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation, where it states:

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take anyof the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

I am satisfied that the Respondent was on reasonable notice under (v) above that the Complainant had an intention to take an action under the Acts. I must determine, for the purposes of this case, whether a suitable comparator would have been treated less favourably. The Complainant was not in a position to nominate a suitable comparator therefore I am satisfied that a reasonable hypothetical comparator would be the person who was not taking a case under the Acts but had entered the hotel in the manner described. Plausible and uncontested evidence was given that the Hotel was closed during Level 5 Covid-19 restrictions, with suitable signage erected to that effect. The Complainant therefore was neither an invitee nor was he seeking goods or services within the hotel. However, the Complainant entered the premises through a fire escape and pointed a video camera at members of staff and at the owner when he appeared.  I am somewhat perplexed as to why the Complainant sought the CCTV footage in the first place when he had the relevant footage already his possession. I conclude that such footage would have been denied to any person who behaved in such a manner, including the hypothetical comparator, therefore no reasonable connection can be inferred connecting it to the fact that the Complainant intended to pursue an Equal Status complaint. In order to meet his burden of proof, the Complainant must demonstrate that a conclusion of victimisation can reasonably inferred or drawn from the facts. The Complainant already had footage of the relevant occurrences therefore the subsequent denial of replicate CCTV in the circumstances as described above cannot be inferred to constitute victimisation as described under the Acts. Therefore, I find that the Complainant failed to discharge the burden of proof that he was victimised.

CA-00045976-001 – Discrimination.

After hearing the relevant evidence and submissions in this case, as outlined above, I find that the Complainant has not established a prima facie case under section 38A of the Acts that (1) he was discriminated against in the denial of goods and services by the Respondent, nor (2) that he was denied reasonable accommodation for his disability. Therefore, I find that the Respondent did not discriminate against him.

CA-00045993-001: Victimisation.

For the reasons outlined above, I am satisfied that the withholding of CCTV footage in the circumstances described did not constitute victimisation under the Acts. I conclude that the Complainant has not established a prima facie case under section 38A of the Acts therefore I find that the Respondent did not discriminate against him by nature of victimisation. 

Equal Status Acts 2000-2015, Disability, Mask Wearing, Covid-19, Victimisation.