Complainant

Respondent

Parties

Tomasz  Pysz

McDonalds' Restaurants of Ireland

Complainant

Respondent

Representatives

  Self- represented.

 Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047481-001

30/11/2021

The complainant has submitted a complaint that the respondent has discriminated against him on the basis of his disability and contrary to the provisions of the Equal Status Acts 2000-2015.

The act of discrimination occurred on the 14 August 2021 when the respondent restricted his access to their restaurant.

He submitted his complaint to the WRC on 30 November 2021.

The complainant contends that the respondent discriminated against him on the 14 August 2021, on the basis of his disability when they refused to serve food to him in their indoor premises. They did offer to serve him outdoors, but it was raining.

Due to a previous accident, he was not wearing a mask.

The manager of the restaurant asked him for evidence of his Covid -19 vaccination and for medical evidence demonstrating an exemption from mask wearing. The manager told him that he would not be served food indoors in the absence of evidence of vaccination. The complainant responded stating that medical records were private to himself and his doctors.

He states that the Irish Government’s advice concerning customer access to premises during the period of Covid -19 was advisory. He maintained that his human rights were infringed.

He was unvaccinated and in the complainant’s view, this absence of vaccination status amounts to a medical condition, different from those who were vaccinated against Covid -19. His non-vaccinated status prompted the respondent to treat him less favourably than all other, vaccinated, customers who experienced no restrictions in accessing the respondent’s service.

 He submitted written evidence questioning the efficacy of vaccinations.

The complainant advised that his unvaccinated status should have been accommodated within the terms of section 4 of the Act and that he should have been permitted to eat indoors.

The complainant emailed the customer service department on a few occasions advising that he believed the respondent’s treatment of him to be discriminatory and that he would be referring a complaint.

His emails were acknowledged but not addressed.

The complainant stated that he was unsure if he had submitted an ES1 form and would revert to the WRC on same.

The respondent though notified of the time and date of the hearing did not attend.

I must decide 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.

While the complainant did not submit a copy of an ES.1 form, he did submit copies of emails which he had sent to the respondent stating that he viewed the actions of the 14 August 2021 to be acts of discrimination, and that he would be referring the matter on to the appropriate authority.

Relevant law.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where

“(a) 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) goes on to state that as between any two persons, the discriminatory ground of disability arises where

“(g) .one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),”

In any complaint of discrimination under the 2000-2015 Acts, the first step for a complainant is compliance with Section 38A (1) of the Acts. It provides that the burden of proof rests with the complainant and means that

 " 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 2000-15 Acts.

In order to show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20, and in other decisions. They are:

- “That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

 Application of law to the circumstances of the instant case.

The complainant submits that he is covered by the discriminatory ground in that he was denied a service due to his disability.

Section 2(1) of the 2000-15 acts  define disability  as

‘(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) 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 maintains that his unvaccinated status amounts to a disability, prompting the act of discrimination which was the respondent’s refusal to serve him indoors. Aside altogether from whether a direction to eat outdoors as opposed to indoors constitutes a refusal of a service, I find that an unvaccinated status does not correspond to the definition of a disability set out in section 2(1) of the Acts of 200-2015.It cannot be said to constitute an absence, impairment, malfunction or dysfunction of a bodily function.

The complainant furnished no medical evidence of any disability requiring or having required medical treatment.

I find that the complainant did not have a disability within the meaning of section 2(1) of the Acts, and that he cannot meet the first requirement of the test set out in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20, which is that he comes within the protected group entitled to rely on the protections contained in the  Acts.

On the basis of the evidence and the law, I find that the complainant has failed to establish a prima facia case of discrimination on grounds of disability.   Therefore, I find that that the complainant was not discriminated against by the respondent on grounds of disability.

The complainant has failed to establish a prima facia case of discrimination on grounds of disability.   I decide that 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.

Failure to provide prima facie evidence.