Complainant

Respondent

Parties

Colin  Starrett

Boss Hogg's

Representatives

  n/a

 n/a

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046706-001

14/10/2021

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 21 of the Equal Status Act, 2000, and has submitted that he was discriminated  against on the grounds of disability when the Respondent, during a level 5 lockdown,  refused to serve him without a facemask on (CA- 00046706-001)

The Complainant, who gave evidence under oath, enter the Respondents premises on the 8th April 2021 in order to buy food. He was not wearing a mask. He walked into the shop. He was immediately asked to put on a facemask. He told the shop assistant that he did not need to wear one as he was exempt. The Complainant was refused service and was asked to leave the Respondents premises. The Complainant latterly provided a letter to the Respondent which explained the regulations as per SI 296. However the owner of the premises put this letter in the bin.

The Complainant felt he was being treated like a second-class citizen and believed that to refuse him service was discrimination.

The Complainant provided a letter dated the 3rd December 2021 from a GP that stated he is unable to wear a mask/face covering due to medical reasons. The Complainant completed a ES1 form on the 14th April 2021 and posted it to the Respondent on the 6th May 2021

This Complaint was received by the Workplace Relations Commission on the 13th October 2021.

The Respondent is a 20 seater café and at the time of the level 5 lockdown was providing food for takeaway.

The Respondent was represented by Mr. O’Gorman (owner) and Ms. Finnegan (employee) who both gave evidence under oath.  Mr. O’Gorman submitted that, at the time of level 5 lockdown, they were following all guidelines in relation to the provision of food.

The Respondent stated that the Complainant came into the shop and he was asked by an employee to put on a facemask. He said he did not need to wear it as he was exempt. The Complainant was informed that they had a duty to protect their staff and customers and asked him if he would wear a mask which were available on the counter. The Complainant said “No” and  he was then asked to leave the shop. He did leave but under protest. The Complainant returned later and handed Mr. O’Gorman a copy of the relevant section of the Equal Status Act and the S.I 296 and Mr. O’Gorman confirmed he put said letter in the bin.

It is the Respondents position that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability. Further, the Respondent submitted this Complaint is statute barred.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties. 

In relation to the preliminary objection that these matters are statute barred, it is necessary to examine the facts giving rise to these Complaints in light of the relevant legislative provisions. In that regard, Sections 21 (6) of the Equal Status Act 2000 provides:

(6) Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(7) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant’s case from being referred within the time limit specified in subsection (6)—

The Complainant submitted this Complaint on the 13th October 2021. The Complainant accepted in both the Complaint form and in the course of the hearing of this matter that this Complaint was submitted after the six-month deadline.

In the circumstances of this case and upon consideration of the explanation provided by the Complainant for the acknowledged delay in the submission of this Complaint, I am not satisfied that the failure to present the complaint or refer the dispute within the appropriate period was due to exceptional circumstances. 

Therefore, this complaint is out of time, and I do not have jurisdiction to hear it and find that the complaint is not well founded and accordingly fails.

Notwithstanding that this Complaint is not well founded in relation to the preliminary application and for the avoidance of doubt I have considered the nature of the alleged discrimination.

Section 3 of the Equal Status Act, 2000, provides:

3.—(1) For the purposes of this Act, discrimination shall be taken to occur where—

(a) on any of the grounds specified in subsection (2) (in this Act referred to as ‘‘the discriminatory grounds’’) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

Section 4 of the Equal Status Act, 2000, provides:

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.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited. 

In Southern Health Board v Mitchell the Labour Court stated:

“  The first requirement is that the Complainant must establish facts from which it may

    be presumed that the principle of equal treatment has not been applied to them. This

    indicates that a Complainant must prove, on the balance of probabilities, the primary

    facts on which they rely in seeking to raise a presumption of unlawful discrimination.

    It is only if those primary factors establish to the satisfaction of the Court, and they are        

   regarded by the Court as being of sufficient significance to raise a presumption of

    discrimination, that the onus shifts to the Respondent to prove that there is no

    infringement of the principle of equal treatment.”

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must 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”

Having carefully considered the evidence of the Complainant together with the documentation he submitted to the WRC, I find that the complainant has failed to set out any facts and or evidence that could lead me to conclude he has established a prima facia case of discrimination on grounds of a disability. The only evidence produced in relation to his alleged medical condition was a letter from a GP dated the 3rd December 2021 which postdates the alleged discrimination.

I find the Complaint (CA- 00046706-001) made pursuant to Section 21 of the Equal Status Act, 2000, is not well founded.

Discrimination