Complainant

Respondent

Parties

Ms. Caroline  O'Connor

Ciara's Homestyle

Representatives

  Self - Represented

Mr Dominic Wilkinson BL instructed by Ms. Isabelle Charmant-Tunney , Solicitor of Kevin Tunney 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-00047188-001

16/11/2021

The issue in contention was the alleged Discrimination against the Complainant on the grounds of Disability and Failure to provide “Reasonable Accommodation” under the Equal Status Act, 2000 by a Retail Premises. The Complainant had declined to wear a face covering.

The Complainant made an Oral Testimony supported by some relevant documents.

The Complainant had entered the Respondent Retail Shop on the 7th of October 2021. A Staff member called Sean had inquired of the Complainant if she had a face mask. She indicted that she did not require one as she had a medical exemption. He asked for proof of the exemption. The Complainant declined to share her private Medical information with a virtual stranger. The Staff Member was advised of the Equal Status Act,2000 and SI 296 of 2020. The Complainant referred to Section 5 of the SI where it is stated that if a “Reasonable Excuse” can be provided the person is exempt from the mask wearing requirement.

The Shop employee was basically not interested and refused to offer service to the Complainant. She was effectively forced to leave the premises.

The Complainant alleged that this amounted to Discrimination on the Grounds of her Disability and the refusal to allow her enter/remain on the premises and provide a Retail Service was a “failure to provide reasonable Accommodation” for her Disability, both actions contrary to the Equal Status Act,2000.

The Respondent made an oral Testimony supported by a written submission. Oral evidence was given by Mr. SW and Ms CP, staff member and proprietor respectively of the Shop in question.

The Respondent stated in opening that the initial “Burden of Proof” in a Discrimination case under the ES Act of 2000 rested with the Complainant.

The Complainant has to establish a “Legal prima facie” case of Discrimination. This is completely lacking in this case.

The Respondents were simply operating in the light of SI 296 of 2020 which required the wearing of facemasks in retail premises.

The Shop Staff member was perfectly within his legal rights to ask the Complainant for proof of her exemption – a doctors’ letter for example. When the Complainant declined to offer any proof of her exemption, other than her verbal statements, he was perfectly correct to deny service. Section 4 (4) of the SI refers

“4(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.”

No Discrimination or Failure to provide Reasonable Accommodation as set out and defined in the Equal Status Act,2000 took place.

The Respondent Legal Advisor, Mr Wilkinson, pointed to Adj 32055, Carberry v O’Higgins & Co Ltd which was almost identical to the case in hand. In this Adjudication the Adjudication Officer had carried out a detailed review of the facts and the law covering Disability & Equal Status. She had found against the Complainant in that case.

On a technical basis Adj 32622  Tattan v Gresham Hotel was also referenced – here the complainant was successful but had presented proof of his exemption to the Hotel on the day in question. In the case in hand the Complainant had declined forcibly to provide any supporting evidence.

Mr Wilkinson pointed out the legal requirements of the ES Act,2000, as regards Discrimination complaints. These were completely different from a Shop Owner/Staff member carrying out his/her legal duty as set out in SI 296 of 2000. The Statutory instrument was a legal requirement from the Government and no person abiding by it’s requirements could be realistically accused of Discrimination.

The case being made by the Complainant is legally lacking in any sound footing and has to be rejected.

The Oral evidence from Mr SW, the Staff Member directly involved, relayed his version of the events of the 7th October 2021. He had approached the Complainant out of genuine Covid concern for Staff and Customers in the Shop. He had not felt entirely safe himself in dealing with the unmasked Complainant. She had spoken in a loud voice and was causing anxiety for Staff and other customers. He had asked her politely to wear a mask. When she declined, he had asked her to prove her Exemption status. She had very pointedly declined citing GDPR regulations and quoted Legislation at him. At this stage as she was declining to wear a mask or prove an exemption he had declined to serve her. She then left in a huff.  The oral evidence that was given by Mr SW was clear and professional.

The Proprietor, Ms CP, while not present on the day in question, gave evidence of extensive Covid signage in the Shop and Training for staff in how to operate in a Covid defensive manner.

Both witnesses were available for Cross examination by the Complainant.

3:1         Relevant Law – SI 296 of 2020 and Equal Status Act ,2000. Legal Discussion.

This complaint is the under the Equal Status Act,2000 (for convenience called the ES Act hereafter).

Over recent months a considerable body of case law and precedent has built up in regard to cases of this nature. Adjudication Decision 32055 ( April 2022) by Ms Hughes AO,  which featured centrally in the Respondent’s defence was a headline setter. It ruled against the Complainant. Interestingly it has been followed by a number of other Adjudication decisions giving similar outcomes. However, as these Decisions were not raised at the Hearing, they have to be seen as not central to this Decision.

In Adj 32055 the Adjudication officer pointed to the vital difference between SI 296/2000 and the Equal Status Acts.

  and at Section 4 (4) the requirement for a

“4(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.”

In this case Mr. Sean W was the Responsible Person. He was clearly carrying out his Legal Duty.

The key issue which was then highlighted in Adj 32055 was the issue of a “Reasonable Excuse” As in this case the Responsible Person (Mr SW) was perfectly in his rights to ask for some solid evidence of what grounds the Complainant was basing her “Reasonable Excuse” on . Without this evidence the Legal balance has to rest with the Respondent Shop Manager. In this case he was simply carrying  out his proper legal duties

To quote Ms Hughes AO further from ADJ 32055

“Furthermore is it not the role of an Adjudication Officer in the WRC to interpret a statutory instrument (SI 296 of 2020) issued by a Government Department under legislation which does not fall within the domain of the WRC. That would be a matter for another forum. Unless of course, it should be added, it was being suggested that a statutory instrument fell foul of some legislation for example equality legislation in a defined way.

Who would be the Respondent in such a case is another issue again. In any event, the complaint here is not the contents of the Statutory Instrument but that the Respondent in this case discriminated against the Complainant on grounds of disability. And this fact goes to the heart of the case and the defence.”

As pointed out in Adj 32055 by Ms Hughes AO to translate this situation into a complaint under the Equal Status Act,2000 faces a number of Leagl hurdles. First of all a successful Equal Status Complaint has to raise an “inference of discrimination” and Discrimination ( treating one person less favourably than another) is clearly defined in the Act. Section 3(1) refers.

In further consideration of this case the sections of the Equal Status which describe Discrimination merit inclusion:

“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) …

Section 3(2) sets out the grounds which for the purposes of this case at (g) states:

‘That one is a person with a disability and the other either is not or is a person with a different disability’

As already stated above it is well established that the first test which must be met by any Complainant when complaining about discrimination on the basis of a discriminatory ground is that they must be able to demonstrate that they are in fact comprehended by the definition of that ground. This conclusion is reinforced by Section 38A (10 of the Equal Status Act which provides:

“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’

If follows from all of the extracts from the legislation that the first requirement in any case where a person is claiming discrimination is that the Complainant who is claiming discrimination on 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. In many cases such a disability will be known or obvious or a description of a medical condition will be acceptable to a Respondent in many circumstances or where an explicit description is given such that a claim of a disability is not disputed.

The key factor , however, is that, in order to prosecute a claim of discrimination on grounds of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, they must be able to provide evidence to support that claim.

Acknowledging that this can be a difficult area for people who have a disability dealing with strangers, the requirements of the legislation cannot be waved away or ignored when a complaint of discrimination is made.  A statement ‘I have an exemption’ is a statement of fact suggesting that it has been approved by someone and the Respondent merely sought evidence of that statement of fact.

The difficulty for the Complainant in this case is that when she was asked by the Respondent for medical evidence that she was exempted, she refused, providing no details of any kind. Thus, the Complainant is attempting to mount a complaint of discrimination against the Respondent on grounds of disability having refused to provide such evidence on the day.

At the hearing she did say that wearing a mask caused her serious distress and she is not able to wear a mask. A letter from her GP was produced in evidence at the date of the Hearing but never provided to the Respondent Shop on the day in question. The difference to the Tattan v Gresham hotel case , Adj 32622, was mentioned by the Respondent. In that case the Complainant had produced an Exemption certificate to the Hotel personnel seeking to require him to wear a mask.

While there is no evidential basis for doubting the Complainant in regard to face masks , a unsupported verbal statement of distress could not be taken at face value to meet the terms of any of the five definitions of disability set out in the legislation or indeed if such a reaction is a medical condition. Such a reaction does not amount to an obvious and readily acceptable disability.

In essence a successful complaint has to be based on a Disability that is at the very least proven, at even a basic level, to the Respondent. In the absence of such proof the Respondent cannot have any complaint of discrimination made against them. This is particularly the case where the Respondent , in this case the Shop, was acting in accordance with a Public Legal requirement, SI 296 of 2020. No such proof was ever provided to the Respondent Shop on the date in question.

3:2         Adjudicator conclusion.

The Complaint, CA-00047188-001, was one of Discrimination arising from, effectively, the Respondent carrying out his duties as required by the SI 296 of 2020 under the Health Act ,1947. Section 31 A Temporary Restrictions) (Covid-19)

In the discussion above the major differences between a dissatisfaction with SI 296 of 2020, a Government Legal regulation and a valid Discrimination claim were examined.

In this case no satisfactory proof of a specific Disability as defined by the ES Act of 2000 was ever established. A verbal assertion that “I am exempt” is not adequate proof of a Disability sufficient to base an Equal Status complaint based on events of the 7th October 2021.

Accordingly, the Adjudicator conclusion is that the Equal Status complaint in this case is legally not Well Founded and has to fail.

Covid 19, Discrimination Complaint, Equal Status.