Complainant

Respondent

Anonymised Parties

A Customer

A Veterinary Clinic

Representatives

  Self -represented

 Hayes Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049402-001

29/03/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

It is the Complainant’s claim that he was subjected to discrimination on the ground of disability in the Respondent’s store on 15 February 2021 for failure to reasonably accommodate him.

The Complaint Form was received by the Workplace Relations Commission on 29 March 2022.  The ES1 Form sent to the Respondent was dated 21 February 2022.

The Complainant swore an affirmation. There were two witnesses who gave evidence on behalf of Respondent, the Practice Manager and the Receptionist who both swore an affirmation.  Both sides were given an opportunity to cross examine each other.

The Respondent filed submissions in advance of the hearing.

On 21 January 2022, the Complainant gave evidence that he called the Respondent to order food for his dog. He attended at the shop to collect the dog food. He was asked by the Receptionist to stand outside the store as he was not wearing a mask and when he refused, the Receptionist took the food outside to the car park where the Complainant’s wife was waiting in the car. It was accepted that he raised his voice and did become agitated to which he apologised for. The Complainant gave further evidence after hearing the Receptionist’s evidence stating he may have called her “a horrible human being” or a “ignorant human”.

The evidence given by the Complainant was that he had a visual impairment which was obvious from the white stick he carried. It was his evidence that he was exempt from wearing a mask because of his disability as it fogged up his glasses.

It was the Receptionist evidence that she worked with the Respondent since 2011. She outlined the profound impact the pandemic had on the workplace from increased workload, to being split from colleagues having to work oppose days, to working behind closed doors all while trying to maintain an essential service.

It was the Receptionist’s evidence that she was on a phone call behind the desk on 22 January 2022 when the Complainant entered the shop without a face covering. Then she asked him to put on a mask to which he “loudly refused”. As the shop was getting busy, she asked him to step outside the door to which he also refused. At this point she picked up his order which had been paid for on a click and collect service, walked out to his car, and left it with his wife who was sitting in the car park. When she came back in, she described the Complainant was still standing there and commented that she was an “ignorant bitch” and he was “going to take this further”. To this the Receptionist stated in her evidence that she “quietly and calmly told him my name” and went back behind her desk. It was denied that she went up to the Complainant’s face.

The Practice Manager gave evidence around the steps the Respondent had taken to comply with the Covid19 restrictions. In relation to the wearing of face coverings she accepted there were some customers would arrive with no mask (either they wouldn’t or couldn’t wear one) and the Respondent would deal with them outside the door to allow for social distancing. She noted that there was face masks on offer in the shop. The prepaid service was available, and it was common for the staff to drop the goods to the carpark.

Section 3 of the Equal Status Act 2000 defines discrimination as: -

3.— (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,

Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds

“(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”)”

Special Treatment is defined in Section 4: -

“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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(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.

In order for a case to succeed under the Act, there is a clear onus on the Complainant to first establish that there was “prohibited conduct” in this case alleged discrimination by the Respondent. It is necessary for the Complainant to establish by way of comparator, named or hypothetically, that the Respondent treated him “less favourably than another person is, has been or would be treated”.

The Supreme Court inKim Cahill V Department of Education and Science, 2017 IESC 29, whereMcMenamin J discussed the limits of reasonable accommodation: -

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J continued: -

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

SI 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 was introduced to assist in the prevention of the spread of Covid-19 in the interest of public health. Under Regulation 5 (a) of S.I. 296/2020 provides for specific exclusions: -

“5. 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 -

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress”

There was no dispute and therefore, accepted that the Respondent is providing a service within the meaning of the Acts.

There was no dispute as to the Complainant’s disability. It was also agreed between the parties that the Complainant was asked by the Respondent to wear a face mask in the store.

There is a considerable body of decisions on this issue with the Adjudication Officer in A Customer v A Retail Shop ADJ-00033208 noting an important point on the context of whether discrimination occurred in the request to wear a face mask: -

“Just because someone with a disability may be entitled to assert a defence of reasonable excuse if they are charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask is evidence that they have been discriminated against or that there has been a failure to make reasonable accommodation”.

This decision follows Regulation 4 (4) of S.I. 296/2020 which requires a “responsible person” that being the person in charge of the premises to:-

“(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.”

The next consideration is to decide on whether the Respondent aware of the Complainant’s disability at the time of their interaction.

The Complainant gave evidence that he “thought they would have released I was except from wearing a mask. I though they would have looked up the exception”. The Complainant gave further evidence under cross examination that the Respondent should have known that “I was disabled with the white cane”.

The Complainant was asked whether he had a doctor’s note around his exclusion to which he replied that; “if I had a physical disability the white cane was enough” and the GP told him that he did not need a note.

There was a dispute on the Receptionist evidence that the Complainant stated he had COPD previously, but he clarified this to state it was his wife who suffered from COPD

From an objective review of the evidence, it cannot be accepted that the Respondent was unaware that the Complainant had a disability when he was carrying a cane particularly, as it was white.

However, it is important to make the distinction in this case where there was no discussion between the parties on the 22 January 2022 around the Complainant’s disability and his inability to wear a mask. From the Complainant’s own evidence, he was of the view the Respondent should have looked up the exceptions. However, just because an individual has a disability alone did not automatically render them except from wearing a face covering. It could be argued that if a “responsible person” was to assume that all people with a disability were exempt from wearing a face covering it would render them in breach of their obligations under S.I. 296/2020 and possibly equality law. Therefore, I find that it is incumbent on an individual to reasonably engage with the “responsible person” to advise them of their reasonable excuse as to why they cannot wear a face covering. To place the entire burden on the Respondent and in this case a receptionist without knowledge of the Complainant’s medical history, to be in a position to connect the Complainant’s disability with his inability to wear a face covering is in a stressful environment at a high point in the pandemic, in my opinion, is a wholly disproportionate and unfairly burdensome. Objectively, it would have been reasonable for the Complainant in these circumstances to advise the Respondent of his inability to wear a face covering when he was placing his order over the phone in advance of his visit or at the door of the shop, to allow the Respondent to accommodate him where he was in full knowledge of his own disability.

On a separate note, while it is entirely understandable that during this time it was frustrating for those individuals who had a reasonable excuse not to wear a face covering due to their disability. However, it does not entitled anyone to engage in name calling or abusive behaviour particularly where workers were simply trying to comply with the temporary restrictions in placed at the time.

The final question is whether the Respondent treat the Complainant less favourably on the grounds of his disability and/or failed to provide the Complainant with reasonable accommodation for his disability?

I find that the Respondent did reasonable accommodate the Complainant in this case by taking an order over the phone and delivering it to the Complainant’s car. While the Receptionist may have acted in heist by not explaining to the Complainant that she was going to drop the goods to the car, this does not amount to less favourable treatment on the grounds of disability. In fact, uncontested evidence from the Practice Manager was that this was a regular service; where customers would phone in their order, and it would be delivered to their car. There was no evidence from the Complainant that he was not aware of this offering and in light of the fact he was a regular to the store and had on this occasion phoned in his order, I find it reasonable that he would have been aware of this service.

For the reasons outlined above, I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on the grounds of his disability. 

There was an application made to anonymise the parties’ names by the Respondent. In the exceptional circumstances where there the Complainant’s medical data is discussed throughout there is merit to divert from the principle of open justice.

I find this complaint to be not well founded.

Equal Status – Face Covering – disability - reasonable accommodation