Complainant

Respondent

Parties

Brendan  Gill

McAteer's The Food House

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041671-001

18/12/2020

The complainant submits that he was discriminated against by the respondent on grounds of his disability in December 2020 when he was refused access to a service following his refusal to wear a face covering.    He also submitted claims of harassment and victimisation.

The claims were submitted on 18th of December 2020.  

The respondent denies they discriminated in any way against the complainant or that he was harassed or victimized by them.

The complainant submits that

He went to the respondent premises on Monday 2nd of November 2020 with the intention of buying a bar of dairy free chocolate.    He submits that he has been served in the shop/premises many times over the years, as he has an allergy to dairy and the respondent sell dairy free products.

The complainant submits that he has also eaten many times on the premises over the years with his wife and children. On arriving at the counter, on 2/11/2020, he was informed by a staff member Mr. C, that he had to wear a face mask.  The complainant states that he told him that he was exempt under medical grounds, and this was not accepted and so he demanded to see the manager.

He submits that the manager refused to enter a conversation with him and so he had no choice but to leave the shop.   

The complainant submits that he returned later that day and was again met by the staff member Mr. C who phoned the manager who also refused to serve the complainant.

The complainant submits that he then phoned the Gardai and waited outside the premises for them to arrive, the Gardai arrived but informed the complainant that it was a civil matter.

The complainant submits that he has a reasonable excuse which amounts to a disability within section 2 of the Equal status acts and that he was treated less favourably than another person in a comparable situation on the disability ground.   He has also lodged claims of harassment on the disability ground and victimisation.

The respondent submits that

The Complainant was requested to wear a face covering in line with government guidelines in place during Covid.    

As set out in its response to his ES1 form, the Respondent at all times complied with its obligations in terms of both law requirements and taking all necessary measures to safeguard the health and safety of staff and customers and always in line with best practice.

The complainant was politely informed by staff member Mr. C that it was policy of the shop to require all customers to wear a face covering.   The complainant was further advised that a mask would be provided if he didn't have one.   He stated that he was exempt on medical grounds but did not provide evidence of this.

The respondent advised the hearing that they offered the complainant alternative ways to order his sugar free chocolate bar, such as service at the door of the shop or home delivery, but he dismissed these options.    

The respondent submits that the complainant refused to comply with reasonable requests and instead he decided to call the Gardai who when they arrived informed him that it was a civil matter, and he then left the premises.

In addition, the Respondent had in place a number of alternative arrangements for customers such as home delivery and service at the door of the shop.

The Respondent was unaware of any medical ground which may exempt the Complainant from wearing a face covering. Notwithstanding this, the respondent offered the Complainant the opportunity to be served at the door of the shop, but he replied stating that he was not a dog.  

There is no evidence that the Complainant was treated less favourably than someone without a disability was or would have been.

In addition, the complainant was offered alternatives in circumstances where he refused to wear a face covering and did not provide any evidence of a medical exemption or disability.

The respondent submits that it has a duty of care to its staff and customers to comply with government legislation.   In addition, the respondent submits that a person who is exempt from wearing a facemask can still pass on Covid to staff and customers and so alternatives are offered.

The respondent submits that the complainant acted in a hostile and irrational manner when reasonably called upon by the Respondent to comply with the Law when on his premises.   lt is further submitted that Respondent tried to defuse the situation, however the complainant was intent on making a scene and acted in an ill-tempered and hostile manner.

The respondent submits that its business is only open today because they followed Govt Guidelines.

The respondent submits that the complainant was and is always welcome in its shop and on its premises.

Thus, the issue for decision by me now is, whether or not the respondent discriminated against or harassed the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.    The complainant had also submitted a claim of Victimisation.

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 3(2)(j) defines victimisation as being:

(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 F12[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 any of the actions specified in subparagraphs (i) to (iv),

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

Section 11(5) defines ‘harassment’ as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

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.

It is submitted that the complainant is a person with a disability for the purposes of the Act.   Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “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 complainant advised the hearing that he is a person with a disability.   The complainant advised the hearing that he suffers from severe asthma and claustrophobia and advised the hearing that he cannot wear a mask for this reason.

In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability at the time of the alleged incident and that the respondent treated the complainant less favourably or harassed the complainant on grounds of that disability.   

The complainant when questioned at the hearing stated that he did not advise the respondent of his disability as it was his own private and personal medical information.

The complainant advised the hearing that he went to the respondent’s shop on 2/11/2020 to purchase a bar of chocolate and that he approached the counter and was informed by a staff member Mr. C, that he had to wear a face mask.  The complainant states that he told Mr. C that he was exempt under medical grounds, and this was not accepted and so he demanded to see the manager.

He submits that the manager refused to enter a conversation with him and so he had no choice but to leave the shop.   

The complainant submits that he returned later that day and was again met by the staff member Mr. C who then phoned the manager who also refused to serve the complainant because he was not wearing a mask.

The complainant submits that he then phoned the Gardai and waited outside the premises for them to arrive, the Gardai arrived but informed the complainant that it was a civil matter.

Witness for the respondent Mr. C agreed that he had asked the complainant to wear a mask and that the complainant had told him that he was exempt.  Mr C added that the complainant did not show any proof of any such exemption and did not advise him of any disability.   Mr. C stated that he told the complainant that he would be happy to serve him at the front door which the complainant refused to do and stated, “I am not a dog”.   Mr.  C advised the hearing that he then called the manager.   

The respondent manager gave evidence that he came to the assistance of Mr. C when called.  The manager advised the hearing that the complainant refused to wear a mask stating that he had an exemption but when asked for proof refused to provide it stating that he didn’t have to show any proof.   

The respondent advised the hearing that the complainant had not been refused service but that he was asked to wear a mask and when he refused, he was offered service outside the door to which he replied, “I am not a dog”.

The respondent stated that the complainant announced that the respondent was breaking the law and that he was calling the guards which he proceeded to do.

The complainant advised the hearing that he told the Gardai that he had a medical exemption from the obligation to wear a mask.  The complainant stated that the Gardai asked to see proof of this exemption to which he responded that he was not required to show him proof but that he decided to show it to the Guard as he wanted to be reasonable.    The complainant stated that he showed the member of the Gardai a letter of exemption from his GP.

The complainant stated that the respondent manager was within earshot of the conversation at this time and so the complainant asked him to walk away as he did not want him to hear his private medical business as he stated that this would breach his personal data protection under GDPR laws

The complainant told the hearing that he was then advised by the Gardai that they could not intervene as this was not a criminal matter but a civil one and that he would have to pursue it as such.  The complainant stated that he gave the two Gardai his details and left the premises.

I note that the complainant in this case advised the hearing that he did have a letter of exemption from his GP which he agreed to show the Guards as he wanted to be reasonable.   He went on to state that he declined to show it to the respondent or in front of the respondent as he did not want him to hear his private medical business as he stated that this would breach his personal data protection under GDPR laws.

The complainant in this case has submitted a claim to the WRC on grounds of disability claiming that he was discriminated against on the ground of disability.   

 The complainant asserts that he was treated less favourably and harassed by the respondent on the grounds of his disability.     The complainant is thus required to demonstrate that a prima facia case of discrimination exists.

In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 

The complainant as proof of his disability at the hearing provided a report from Medmark dated the 13th of November 2020, I note that the incident the subject of the complaint took place before the date on the Medmark report as the incident took place on the 2nd of November 2020.    The complainant also submitted to the hearing, a letter from his GP dated 16th of July 2020 stating that he could not wear a mask due to asthma.     The respondent at the hearing drew attention to the fact that the Medmark document was only created after the date of the incident and advised the hearing that the GP exemption letter had not been shown to them by the complainant.  The complainant at the hearing did not dispute this stating that it was his own personal and private medical information.

I note that the complainant in this case by his own admission stated that he had not disclosed details of his disability to the respondent.

Finally, and for the sake of completeness I note that the complainant in this case was not refused service and was offered an alternative method of service at the door of the shop.  In addition, the respondent advised the hearing that they also offered the option of home delivery at the time.

As regards the claim of harassment on grounds of disability the complainant has failed to establish that he was subjected to harassment by the respondent on grounds of his disability.

In addition, as regards the claim of victimisation, the complainant failed to adduce any evidence in support of an assertion that he was subjected to any adverse treatment arising from any of the actions outlined in Section 3(2)(j). 

I am satisfied from the totality of the evidence adduced in this matter that the complainant has failed to establish that he was treated less favourably by the respondent on grounds of a disability or that he was subjected to harassment by the respondent on grounds of his disability.

In such circumstances, I am satisfied that the complainant has failed to establish a prima facia case of discrimination on grounds of disability.   Accordingly, I am satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of disability.     In addition, I am satisfied that the complainant was not victimised by the respondent contrary to section 3(2)(j) of the Equal Status Acts, 2000-2015.

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)                  the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015,

(ii)                  the complainant was not Harassed by the respondent on grounds of disability contrary to section 11(5) of the Equal Status Acts, 2000-2015,

(iii)                 the complainant was not victimised by the respondent contrary to section 3(2)(j) of the Equal Status Acts, 2000-2015.