Complainant

Respondent

Parties

Shaun  Walton

J J Field & Co t/a Fields Supervalu Skibbereen

Representatives

Self-Represented

Colette McCarthy Wolfe and Co. 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-00044510-001

08/06/2021

The Complainant accompanied his wife when shopping at the Respondent supermarket during Covid-19 restrictions. His wife has a moderate to severe hearing loss. The Complainant was not wearing a mask and claims that he needed to communicate with his wife so that she could lip-read him.  He submits that he was confronted by the Respondent’s Store Manager at the tills and was led to believe that he was no longer welcome in the store if he did not wear a mask. The Complainant submits that the actions of the Respondent amounted to discrimination under the Equal Status Act 2000 -2015, as amended, (the Acts).  The Complainant asserts that the health regulations in force at the time allowed him to be exempt from wearing a mask so as to allow him to communicate with his partner and that the actions of the Respondent constituted discrimination by association and further, that the Respondent did not allow him reasonable accommodation for the associative disability.

The Respondent denies it had engaged in prohibitive conduct under the Acts and submits instead that it was unaware that Complainant’s partner had severe hearing difficulties and further submits that the reason for the Complainant’s refusal to wear a mask was not to cater for the disability needs of his partner but rather was part of his public campaign against Covid-19 restrictions.  

Summary of the evidence of the Complainant:

The Complainant gave evidence under oath. The Complainant, his wife and his son went shopping for organic items in the Respondent supermarket. The Complainant gave evidence of his wife’s hearing disability. He said he did not wear a mask due to the fact that his wife needed to lip-read him so that they could communicate while shopping.

When they got to the checkout and placed the goods on it, the Complainant’s wife and son went to stand at the other end of the checkout to receive the goods as they were passed through. A man approached the Complainant who he now knows as Christy Dempsey, Store Manager. During the conversation (described in the transcript below), the Complainant, at some point, found the physical position of Mr Dempsey intimidating considering that the guidelines were to stand at least two metres apart.

The Complainant videoed the interaction with his phone, which he had on a lanyard around his neck. The Complainant exhibited the transcript of the interaction. (I allowed the video footage to be played at the hearing at the request of the Complainant. There was no objection from the Respondent nor the Store Manager). The Complainant admitted that he had posted the footage on ‘YouTube’. The following is the transcript of the footage as transcribed by the Complainant (with appropriate redaction):

Mr Dempsey: You have to have a mask on in the shop.

 Mr Walton: Oh yeah.

Mr Dempsey: Under the law, I have to phone the police. I don't like doing it. I'm sorry.

Mr Walton: (Mutters something about fascism.) Secondly, my wife is er...needs to lip read me, so I’m legally exempt.

Mr Dempsey: Get me a letter. Get me some proof, but please, you cannot be in the shop. I'm not going to argue with you.

Mr Walton: That's why I’ve got this yellow star on (refers to yellow star badge) because it's fascism.

 Mr Dempsey: I'm not going to argue with you.

Mr Walton: Well, I can give you a bit of proof, but I shouldn't have to. Mr Dempsey: I'm not going to argue with you.

Mr Walton: No, I’m not arguing.

Mr Dempsey: (Interrupts.) You cannot be in here without a mask.

Mr. Walton: I can be. It's disability discrimination. If you say that i can't come in here without a mask on, it's disability discrimination. (Mr Dempsey tries to interrupt.) I've already written letters about the attitude of staff here. (Mr Dempsey tries to interrupt again.) It's disability discrimination.

The Complainant’s wife:  Let's go somewhere else.

Mr Walton: No, no.

Mr Dempsey: (Unintelligible.)

Mr Walton: (Mr Walton removes doctor’s letter from bag.) We're legally exempt. I'm legally exempt because she needs to lip read me when we buy shopping.

Mr Dempsey: Can we, can we...get the Guards to sort this out?

Mr Walton: No. I'll show you the paperwork and then you can call the Guards. Mr Dempsey: I'll get the Guards to sort it out. Okay?

Mr Walton: No. Where is it? A doctors letter here. (Mr Dempsey tries to interrupt. Mr Walton quotes from the letter.) "To whom it may concern. This lady is a patient at our practice and suffers from severe hearing loss." Well, if you...I think it's article 296...of the exemption... (Mr Dempsey repeatedly tries to interrupt) ...of the health...not the exemption... (Mi· Dempsey interrupts.)

Mr Dempsey: I'm not interested in that. Mr Walton: Well, you call the Guards then.

Mr Dempsey: Okay. Do you want to wait (unintelligible)?

Mi· Walton: You're going to get a letter off me complaining about disability discrimination (Mr Dempsey repeatedly tries to interrupt) and I’m going to be complaining to the right authority about disability discrimination.

Mr Dempsey: You're going to send me a letter? So, I don't need your name now. Mr Walton: No you don't.

Mr Dempsey: I'll pass it on to the Guards.

Mr Walton: I've got a recording of it all. You don't need my name. Mr Dempsey: (Unintelligible.)

Mr Walton: You call the Guards then. You'll find yourself in the wrong. It's disability discrimination.

 The Complainant stated that his family were all very shaken and upset by the incident. The Gardai subsequently approached him after he left the supermarket but when he explained what had happened, they took no further action and left the scene.

Cross-Examination:

The Complainant accepted in cross-examination that he had asked for the Gardai to be called three times, as was evidenced in the video footage. He accepted that he had entered the shop previously in September 2020 without a mask and videoed an incident where a member of staff was seen reclining her head in horror because he had no mask. He stated that the reason he had entered the Respondent’s shop previously without a mask was so that he could “test the waters”. In response to questioning he said he wears his mobile phone on a lanyard to video such encounters. In response to online postings exhibited by the Respondent, he accepted that he had a public online presence where he campaigned against mask wearing and had posted his experiences previously with regard to supermarkets in West Cork. He said in response to further questioning that he had encouraged people not to wear masks and to video their encounters if challenged in shops. He accepted that his wife has shopped regularly at the Respondent’s supermarket with a mask, and without staff assistance regarding her hearing disability.

When questioned with regard to the transcript and video footage he accepted that he was wearing a yellow “Star of David” badge and referred to ‘fascism’ when addressing Mr Dempsey. He said he regretted those comments.

Legal Argument:

The Complainant asserts that he was discriminated against, by association, on account of his partner’s hearing loss, contrary to section 3(1)(b) of the Equal Status Act 2000, as amended, (the Act) where it provides:

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

 The discrimination is that he was led to believe that he was no longer welcome in the shop by the Respondent if he did not wear a mask and that this was discrimination by association because it pointed to future denial of goods and services to him, because of his wife’s disability.

The Complainant also submits that he was not reasonably accommodated contrary to section 4 of the Act where it provides, in its relevant part:

4.— (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) 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 Complainant also submits that he had reasonable excuse not to have a face mask in line with Section 5 of S.I. 296/2020 of the Health Act 1947 (Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) where it states:

Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if: -

(a)    The person cannot put on, wear or remove a face covering…

…(b)The person needs to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise)

The Complainant submits that he was allowed not to wear a mask under the reasonable excuse provisions of S.I. 296, 2020, of the Health Acts as outlined above.  Due to his wife's disability, the Complainant was treated less favourably than other shoppers in the premises and was subjected to prohibited conduct, in that he was wrongfully pressurised by Mr Dempsey to give documentary evidence of the "reasonable excuse", despite there being no requirement to so do us under the Acts or Statutory Instrument.

The Complainant contends that the Respondent tried to deny the Complainant service, even though its employee, Christy Dempsey, was made aware of the Complainant’s wife’s severe hearing impediment and the requirement that she be able to lip-read her support person (the Complainant). The Complainant and his wife suffered embarrassment and distress, compounded by the calling of An Garda Siochana by Mr Dempsey.

Summary of the evidence of Mr Christy Dempsey:

The witness gave evidence under oath. He described himself as the manager at the Respondent supermarket with over 50 years’ experience at the location.  He described how the business was trading under extremely difficult circumstances during the Covid-19 pandemic. On the day in question, he went to the checkout because it was brought to his attention, by staff members, that the Complainant’s behaviour of not wearing a mask was distressing some customers and staff. He said that it was the Complainant who insisted on calling the Gardai. He said he had known the Complainant’s wife from previously being a customer in the shop and was not aware that she had hearing difficulties.

Cross-Examination:

The witness accepted that he was not aware of S.I. 296 of 2020 with regard to the exemptions for mask wearing. He said that he was aware generally and would adopt a common-sense approach to mask wearing.

Summary of the Evidence of Ms Ruth Field:

The witness gave evidence under oath and described herself as a director of the Respondent company. She did not witness the happenings on the day. She was previously involved in responding to the Complainant regarding an incident when he had entered the supermarket in September 2020 and took some video footage of a member of staff who was alarmed by his behaviour. She described accommodations they had made for people who could not come into the supermarket during the height of the pandemic which included a phone-in and order service with doorstep delivery. She knew the Complainant’s wife from shopping in the store but was not aware that she had a hearing difficulty. She was aware that the Complainant’s wife wore a mask when shopping. She recalled at least two previous incidents where the Gardai were called as a result of customers refusing to wear a mask.

Cross-Examination;

The witness said she was not aware of the precise nature of the regulations as set out in S.I. 296 of 2020.

Respondent Argument:

The Respondent submits that it did not discriminate against the Complainant because they were not aware that the Complainant’s wife had hearing difficulties. Furthermore, the Respondent submits that the Complainant was not denied goods or services on the day and his business in the shop had concluded when the interaction happened. The Respondent contends that the reason for the Complainant not wearing a mask was not to support his wife, who had shopped previously unsupported on her own, but instead as furtherance of his general public campaign against mask wearing.  

Applicable Law:

The Equal Status Acts 2000-2015 (the Acts), prohibit discrimination in the provision of goods and services to people who have a disability.

Section 3 of the Acts relate to discrimination by association where it states:

 (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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination…

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 by association, in a twofold process that: (1) his wife has a disability and that he was an associative person as defined under the Acts and (2) the Complainant was subject to treatment by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act i.e., that he is associated with his wife who 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 goods and services by virtue of his wife’s disability and furthermore that the Respondent did not afford him reasonable accommodation to be supportive of his wife when managing her disability.

It was uncontested by the Respondent that the Complainant’s wife had a disability and they also accepted that the Complainant was an associative person. I am satisfied that for the purposes of the Act the Complainant falls within the discriminatory ground claimed.

The next question that has to be answered is whether the Respondent discriminated against the Complainant by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation. The legitimate comparator therefore, in that situation, would be someone who was not wearing a mask during the pandemic but was not an associative person as described under the Act. Cogent evidence was given by Ms. Field that on previous occasions persons who were not wearing masks were challenged and the Gardai were called on at least two occasions. The Complainant offered no evidence, other than a broad assertion, that he had been treated less favourably than others who were not associated persons.

A fundamental uncontested fact in this case was that both Mr Dempsey and Ms Field were unaware of the disability of the Complainant’s wife. Ms. Field gave evidence that the wife of the Complainant shopped freely in the shop without ever seeking accommodation or support on account of her hearing loss. When Mr Dempsey approached the Complainant at the checkout it was clear from the evidence that he was not aware of the disability of the Complainant’s wife. Indeed, the transcript of the video and the evidence of the Complainant showed that he had to make Mr Dempsey aware of his wife’s disability. Therefore, I am satisfied that the challenging of the Complainant was not about the protected characteristic of his wife i.e., her hearing loss, but the simple fact that the Complainant was not wearing a mask in the supermarket.

The Complainant asserts that his prime motivation for not wearing his mask was to assist his wife in picking items. Notwithstanding the fact that plausible evidence was given that his wife never requested assistance while shopping previously, I was not convinced by the Complainant’s argument that his failure to wear a mask was to give the assistance claimed on the day in question.  I cannot ignore the fact that the Complainant admitted to being a prominent anti-mask campaigner who had previously visited the Respondent supermarket alone and videoed a member of staff recoiling when she discovered he was not wearing a mask.  He said in evidence that it was to ‘test the water’. Evidence was given, which he did not deny, that he previously took footage of other experiences in West Cork supermarkets, encouraging people online not to give in to mask wearing. He stated in evidence that he always came prepared and wore the mobile phone on a lanyard around his neck so as to be prepared to video people when he was confronted. On the day in question he wore a “Star of David” badge and referred to fascism when confronted by Mr Dempsey. All of the foregoing points towards the inescapable conclusion that the Complainant was prepared for an expected confrontation. The fact that he posted footage of the encounter with Mr Dempsey on ‘YouTube’ soon afterwards reinforces my conclusion that, on the balance of probabilities, his prime motivation was to use the incident to further highlight his opposition to mask wearing generally, as distinct from seeking reasonable accommodation for his associative disability 

The Complainant submits that the calling of the Gardai and the subsequent humiliation amounted to harassment. However, the Complainant accepted, and the transcript of the video shows, that he encouraged Mr Dempsey to call the Gardai on three occasions during the verbal interaction. In conclusion, it was clear to me that the Complainant was not denied services nor goods on the day. The Respondent was not aware of the hearing loss of the Complainant’s wife therefore I conclude the action of challenging the Complainant was not by virtue of the Complainant’s association with the protected characteristic of his wife. Furthermore, the Complainant gave no evidence of seeking reasonable accommodation on the day, neither for his wife, nor himself.

For the reasons outlined above, I conclude that the Complainant did not discharge the initial burden of proof as required under section 38A, that he was discriminated against as an associated person to someone who had a disability, nor could he show that he was denied reasonable accommodation in breach of section 4 of the Acts.  Therefore, I find that he was not discriminated against by the Respondent.   

Equal Status Acts 2000-2015, Mask Wearing, Covid-19, Discrimination by Association