Complainant

Respondent

Parties

Vitalijs  Nakaluznijs

Dooley's Pharmacy

Representatives

 Self- represented

Kevin Bell BL instructed by  DAC Beachcroft Dublin

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042055-001

19/01/2021

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, victimisation and failure to provide him with reasonable accommodation for a disability.

The claims were submitted on 19th of January 2021.   The complainant at the hearing withdrew the claim of harassment.

The respondent denies they discriminated in any way against the complainant.

The complainant submits that he went to the respondent premises to collect his prescription medication on the 15th of December 2021.   He submits that while in the queue behind other customers a member of the respondent’s staff told him to go and wait outside and that she would go out to him in a few minutes.   The complainant submits that he replied saying that he did not have to wear one and told her to go back to what she was doing. 

The complainant submits that he did not need to wear a mask as he had an exemption due to a disability.

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 also submits that the respondent did not do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities.   He has also lodged claims of harassment on the disability ground and victimisation.

The respondent submits that

The Complainant claims that he was discriminated against on the grounds of disability. No information or evidence has been provided as to what disability he claims to have.

The Respondent was at all times unaware that the Complainant has or purports to have a disability.

 The burden of proving that the incidents occurred is on the Complainant.

The Respondent does not deny that the Complainant was requested to wear a face covering. As set out in its letter of 7 January 2021 to the Complainant in 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 respondent is aware that some customers may have medical conditions that exempt them from wearing a mask and does not in those circumstances enforce the wearing of a mask where they are made aware of the specific reason.    In addition, the Respondent has in place a number of alternative arrangements for customers.

The Respondent was unaware and remains 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 avail of such alternative arrangements.   The Complainant remains a customer of the Respondent and he is now served at the pharmacy door.

There is no evidence that the Complainant was treated less favourably than someone without a disability was or would have been. The Complainant was not treated any less favourably, or indeed any differently, from the way in which the Respondent treats any customer who does not wear a face covering in its pharmacy.    In addition, the complainant was never refused service by the respondent and was offered alternatives in circumstances where he refused to wear a face covering and did not provide any evidence of a medical exemption.

The complainant at the hearing withdrew the claim of harassment.

Thus, the issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.   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 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 ‘mental health issues’, ‘social phobia’ and depression.  The complainant advised the hearing that he couldn’t wear a mask.

The complainant at the hearing did not produce any documentary evidence of a disability or any evidence that he had received a medical exemption from wearing a mask.

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 and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability.  

The complainant when questioned at the hearing stated that he did not advise the respondent of his disability as he felt he had the right to keep it to himself.

The complainant advised the hearing that the incidents complained of took place over a three-day period the 14th,15th and 21st of December 2020.    The complainant confirmed that he had not been refused service and that he had attended on the 14th to collect a prescription, he stated that he had on this occasion been told that he needed to wear a mask, he attended again on the 15th to collect an additional element of the prescription and he was told to wait outside to be served.  On the 21st he had only come back to ask the name of the person with whom he had dealt with on the 15th for the purpose of legal action.

The respondent advised the hearing that the complainant had not been refused service and that each time he came in he was looked after either inside or outside the shop.   The complainant confirmed that he had been served and that he had not been wearing a mask on any of the occasions.   He stated that he had been asked to wear a mask on the first occasion and on the second occasion he was told to wait outside to be served, he confirmed that on the third visit he had only returned to ask for the name of the person who served him indicating that it was for the purpose of legal action. 

Following the incidents, the complainant sent the Form ES1 to the respondent on the 28th of December 2020.   The respondent replied to this form on the 7th of January 2021 outlining that they have a number of alternatives available for individuals who are unable to wear a mask such as home delivery and click and collect. 

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 on the grounds of his disability and in respect of a failure to provide him with reasonable accommodation for that 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. 

I note that the complainant in this case has provided no evidence/documentation in relation to his disability or in relation to any medical exemption from the requirement to wear a mask.  The complainant by his own admission stated that he had not disclosed details of his disability to the respondent, nor did he offer any evidence of any medical exemption from the requirement to wear a mask.   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.

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 the respondent failed to provide him with reasonable accommodation for such 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 by the respondent on grounds of disability or in respect of a failure to provide him with reasonable accommodation for a 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 discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure 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, and

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