Complainant

Respondent

Parties

Bernard  Gilroy

Decathlon Sports Ireland Limited

Representatives

Represented by Andrew Whelan BL, instructed by Collins Crowley Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00046575-001

18/02/2021

The complainant states that on 19 August 2020, he entered the respondent store. He was accompanied by his wife and three children, ages 8, 12 and 15. He states that the two youngest children were exempt from wearing face coverings as per the legislation. The complainant states that his wife and eldest son wore masks as they were not exempt. He further stated that he was not wearing a mask. The complainant states that he was approached by a security guard and informed that he had to wear a mask. The complainant states “the security man told me that I had to put a mask on because it was the law and I politely informed him that I was exempt from wearing a face covering pursuant to the very law he was implementing. He asked me what my medical condition was and I told him that I was not going to give him any personal data in relation to my private medical information and that there was no requirement for me to do so.” The complainant states that subsequently he was approached by a “young” member of staff who claimed to be the manager and told him he would provide him with a mask to wear or he would have to leave the store. The complainant states that he told him he was exempt and the manager asked to see a medical certificate and the complainant advised him that there was no requirement to provide same. The complainant submits that a member of staff kept insisting it was store policy. The complainant states that at this stage he was very embarrassed as a crowd had gathered and there were heated exchanges. The complainant states that subsequently the manager returned to inform him that there was no such shop policy in existence and that the manager told him he was free to continue.

The complainant states that the family day out was completely ruined. He submits that he was discriminated against on grounds of disability contrary to the Equal Status Acts. 

The complainant states that he had a heart attack in 2015 and as a result has a physical impairment; he states that he suffers from a shortness of breath and cannot wear a mask for any extended period.

The respondent submits that the complainant’s complaint appears to pertain to his initial interaction with a security guard at the respondent’s premises and subsequent interactions with the respondent’s staff. The respondent states that it is noteworthy that by the complainant’s own account of events, he confirms that he was permitted to enter into, and remain on the respondent’s premises despite not wearing a face covering as was law at the material time.

The respondent submits that the complainant makes much of the interactions in relation to his not wearing a face mask, however the respondent contends that at each stage rather than explain the grounds of disability entitling him not to wear a mask, it was the complainant who sought to aggravate the situation. The respondent states that the complainant was aggressive and used abusive language to its staff and when requested to desist from videoing and recording the incident on a phone, he refused to do so. The respondent maintains that its staff were simply attempting to do their job and ensure that the law, applicable at the time was complied with so as to protect their customers and staff. The respondent states that crucially, at no stage was the complainant refused entry to the store or requested to leave the store.

The respondent reiterates that at no stage was the complainant discriminated against. It states that the complainant was permitted into the store, he was permitted to remain in the store despite his refusal to wear a face mask or to provide grounds for his exemption. The respondent states that ultimately it was the complainant who left the respondent store, at a time of his choosing having voiced complaint and dissatisfaction at the enquiry as to why he was not wearing a mask. The respondent asserts that significantly and on his own version of events, at no stage is there any evidence or submission set forth that the complainant was treated any less favourably to any other customer. Equally, there is no evidence or submission put forward by the complainant that he was prevented from making a purchase.

The respondent submits that the complainant’s grounds for complaint are no more than general assertions regarding various alleged instances of wrongdoing all of which appear to stem from a dissatisfaction with the law mandating face masks in operation at the time. The respondent states that its staff request and enquiries made into the basis for the exemption were at all times entirely lawful. 

The issue for decision by me 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. 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 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.

The complainant advised the hearing that he is a person with a disability.   The complainant stated that he suffers from a shortness of breath and cannot wear a facemask for any extended period.

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

Having carefully examined all of the evidence heard, I am satisfied that while the complainant states he has a disability, no medical evidence was provided to the respondent at the material time and therefore the respondent was not on notice of any disability rather the complainant made an unsubstantiated assertion that he was exempt from wearing a mask. In such circumstances I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability.  

It is noteworthy that, in the particular circumstances pertaining to this case, the complainant was permitted to enter the shop and remain on the premises and leave the shop at his choosing.

In addition, based on the oral evidence heard, I found the respondent staff who attended the hearing to give testimony, very polite and respectful. They stated that their upmost concern was that of the protection of customers and staff at the height of the pandemic.

Having carefully examined all the evidence adduced in the within case, I find that the complainant has failed to provide evidence in support of his assertion that he was treated less favourably by the respondent on grounds of a disability. In such circumstances I am satisfied that the complainant has failed to establish a prima facie 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.

In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I find that the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3 of the Equal Status Acts, 2000-2015.

Facemask, Equal Status, Disability