Complainant

Respondent

Anonymised Parties

A customer

An electrical retail shop

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042366-001

08/02/2021

The complainant contended that he was discriminated against by the respondent on the grounds of disability and that this was in relation to accessing the respondent shop on 17 January 2021.  The respondent denied the claim.

In his complaint form, the complainant outlined that on 17 January 2021 he attended at the respondent store and was immediately told that he must cover his face with a mask.  He outlined that he replied that he could not do it because he had a health problem and that he had medical certification.  He outlined that the respondent told him that he could not do the shopping without the mask and that he was calling the Gardai.  He stated that there were also attempts to push him out of the store and to damage his phone.  He stated that when the Garda arrived, his doctors’ certificate was checked, and he was told that everything was okay.  He stated that he asked if he could continue shopping in the store, but the respondent refused him service and said that he should leave the store.  He submitted that this constituted discrimination under the Equal Status Act on the grounds of disability and that he had the same rights as other people to shop at the store. 

The complainant provided the Workplace Relations Commission with an email outlining his position in relation to the reply from the respondent to his ES2 form.  In that document he stated that the respondent had said that he had refused to give a reason as to why he couldn’t wear a mask.  He stated that this was a lie, that when he entered the store and was asked to put on his mask he replied that he could not do so because he had a health problem.  He stated that the manager had asked him to show him his doctors’ certificate and that he had asked that manager to introduce himself as he didn’t have an ID with name on it.  He stated that the manager responded that he did not want to say his name and so he (the complainant) replied that he would not show his private documents from the doctor.  He stated that he had no such obligation and that he did not have to. 

He stated that the manager was given clear information that he had health problems and couldn’t wear a mask and he stated that he was immediately told that he was to leave the store and not to be served.  He stated that he told the manager many times that he had medical problems and that he could not cover his face and that he had a doctors’ request that he be exempt. 

In his ES2 form he commented in relation to the racist comment he was alleged to have made.  He stated that this was not true, that the seller was aggressive and tried to push him out of the store.  He stated that he then waited for the Gardai and that he kept a distance of 2m and at all times he told the seller to move away despite the fact that he didn’t want to do this.  He stated that when the Garda came and checked his medical certificate, they said that everything was okay and that he did not have to cover his face.  He stated that even after all this he asked again if he could shop in the store and in the presence of the Garda the seller said that he could not.  He stated that the store can say whatever it wants but the facts are as follows:

·       That he informed the store why he didn’t have to cover his face, that he had health problems and that he had a medical certificate

·       That in the presence of a Garda who had checked his certificate, he again asked to be allowed enter the store and the store refused to serve him all the time due to his disability

·       That according to the law, masks are mandatory in shops and there is information on the HSE website to that effect, yet the same pages says that in certain circumstances a person does not need to cover their face as follows: -

o   Where a person has trouble breathing

o   Where a person is unconscious or incapacitated

o   Where a person is unable to remove it without help

o   Where a person has special needs and who may be upset or uncomfortable wearing them

o   Where a person needs to communicate with someone who has learning difficulties or is hard of hearing or deaf

The complainant also provided a copy of his medical certificate, and he stated that the store was discriminating against him under the law, that he is a man as much as anyone else, and the fact that he is sick and has problems with panic attacks that prevent him from breathing is not a reason to deny him service in the shop.

Complainant evidence given under oath:

At the hearing on 29 April 2022 the complainant stated that on 17 January 2021 he attended the store to buy a laptop for his son.  He stated that he was standing at the front of the queue and that the person he now knows to be Mr J, asked him if he had a mask.  He stated that he replied that no he didn’t, that he had a medical condition and that he was not in a position to wear a mask because of that medical condition.  He stated that Mr. J advised him that if he had no mask, he must leave.  He then outlined that Mr. J later asked him if he would show Mr. J the medical certificate and he advised Mr. J that Mr. J had no ID and he asked him who he was.  The complainant outlined that Mr. J would not tell him who he was, and in those circumstances, he would not show him the medical certificate.  He said he was asked to step out of the queue, and he said that Mr. J became very emotional and somewhat aggressive and that he repeatedly said to him “No mask, no service bro”.  The complainant stated that he again informed Mr. J that he had a medical condition, to which Mr. J responded, “you have five minutes to leave as the guards are coming”.  The complainant advised that he had a medical condition for ten years and that it would constitute a disability and that notwithstanding him bringing this to attention, Mr. J tried to grab his phone.  The complainant advised that the Garda arrived and checked his cert and said it was okay and yet he was still refused service.  He confirmed that he had completed the ES2 form and that at no stage did the respondent acknowledge that he was exempt from wearing the mask as set out in his GP cert.  He said he informed Mr. J three times that he had the medical certificate and yet he was still refused service.  He stated that he tried to video the interaction between him and Mr. J but it was not easy to see who was behind the mask as Mr. J was wearing a mask.  In response to questions from the Adjudication Officer he confirmed that he did not have Mr. Js’ permission to take a video of him. 

Cross examination of the complainant:

The respondent queried how far away he was from Mr. J, and he said just a short distance.  In response to questions, he confirmed that it was not unexpected that there was an issue in relation to him attending the store without his mask, but that he had the medical certificate available for review.  In response to queries from the respondent as to why the complainant had not stated what his condition was or shown his medical certificate in the store, he said that he did not have to share his private information with other people and he further stated that Mr. J wouldn’t identify himself and would not give either his name or his role, and in such circumstances, he felt it was inappropriate to hand over his personal medical information.  The respondent stated that if he had done so, he would have been allowed in. 

The respondent asked if the doctor had advised whether or not he could wear a mask for a short period of time and he responded that he could wear it for a minute or two but that that wasn’t long enough to conduct his business.  The respondent also asked if he found during the two years that he had to leave the country and he said that he had left the country, he had worn the mask for a short period in a hotel reception but that he had not worn the mask on the plane.  The respondent put it to him that on a plane it was mandatory to wear a mask and he responded that no, he had never been required to use it.  The respondent put it to him that he had mentioned getting annoyed when he was asked for the cert and the respondent asked him how annoyed he had actually become and he said, no, that he wasn’t angry, that he had asked Mr. J who he was, that the cert was a private document, and so he took the position, no name, no cert. 

The respondent put it to him that he would have been going to the desk to present his cert and his response was that it was his private choice not to provide the medical certificate.  The respondent put it to him that it was clear that Mr. J was a member of staff as he was in uniform and the complainant responded that yes, he knew that he was a member of staff.  The respondent put it to the complainant that the context at the time of the incident was that the number of members of the public contracting COVID was quite high, at the time there were no journeys allowed, only essential journeys and no browsing was allowed and that the criteria applying in the store was what was set down in the government guidelines.  The complainant responded that he was aware of the guidelines and that under the HSE guidelines he was exempt. 

The respondent put it to the complainant that there was no visible disability and that it appeared to staff in the store that he was simply not wearing a mask.  The complainant acknowledged that he did not have a visible disability but that he had informed Mr. J three times that he had a disability.  The respondent queried with the complainant if he had been stopped from attending other stores and if so, how many had allowed him in without a cert.  The complainant said that he had been asked by many stores in relation to a mask and that he had been allowed in without medical certificate. 

The respondent put it to him that it was a very difficult time to be working and that if the cert had been shown it would have permitted him to attend the store.  The complainant responded that the respondent had stated that he had made a racist comment towards Mr. J and he said that he didn’t make a racist comment, that what he had said was, why isn’t there a sign up to say no blacks allowed.  He said that this was not a racist comment directed at Mr. J, but rather it was used as an example of if you put up a note to say that no mask, no admittance, that is the same as putting up a note to say no black people allowed.  The respondent put it to him that he had made the comment to Mr. J who was coloured and that if you say such a thing to a person of colour that it had an impact and had been very upsetting to Mr. J, to which the complainant responded that he had said to Mr. J how would you feel if there was a sign up that said no black people allowed.  The respondent asked if he had made the comment before he had been told, “no mask, no service bro” and he confirmed that no, he had made the comment afterwards. 

The respondent drew attention to a comment that the complainant had made that somebody had tried to smash his phone and he asked who he alleged had done that.  The complainant responded that Mr. J had tried to smash his phone, that he hadn’t tried to grab it, that his hand kept coming up and that he had to keep moving backward.  The respondent put it to the complainant that in actual fact Mr. J was putting up his hand to block the video from being taken as he had been clear that the complainant did not have his permission to take video footage of him and the complainant agreed that he understood he had no permission. 

At the first hearing on 29 April 2022 Ms H, on behalf of the respondent, stated that at the time of the incident, the manager on duty in the store was Mr J and that the complainant came into the store without a mask.  She stated that Mr J approached the complainant and asked him politely to sanitise and offered him a mask to wear.  She stated that the complainant immediately got angry and refused to wear a mask and also refused to give a reason why he would not wear a mask.  She stated that Mr J offered to accompany the complainant to an area of the store if there was a particular item he wished to purchase but that the complainant then very abruptly ducked under the control barriers at the front of the store which were placed there ensure social distancing by restricting the number of customers who could come into the store at any one time, and to ensure an orderly one way system on entry. 

She stated that the complainant proceeded to force his way into the store.  She stated that the complainant took out his phone and started videoing Mr. J but that Mr. J asked him to stop doing so and that if he continued the guards would be called to attend the store.  She stated that at this time, Mr J stood in front of the complainant and asked him to stop videoing and that the complainant said to Mr J, who is African, “why is there not a sign outside that says no blacks allowed in the store”.  Ms H stated that in view of the aggressive nature of the complainant and the appalling level of racial abuse, Mr J requested from the cashier that the guards be called.  She stated that the guards arrived quickly, and that the complainant was still trying to take a video in the store.  She stated that the guards immediately told him to stop taking footage with his phone and that he did not have their permission to do so.  She outlined that when the guards asked him why he wasn’t wearing a mask, he told them that he did not have to, and he proceeded to pull some kind of a note from his pocket saying that it was a doctors’ note.  She stated that at no stage had the complainant ever told Mr. J that he had such correspondence with him or told him that he had a medical reason for not wearing a mask.  She further outlined that when the guard was told by Mr J of the behaviour of the complainant and his racist comments, the complainant was told that he was not going to be served in the store and to move outside.  The complainant was subsequently not served.  She stated that at no time was the complainant pushed or attempted to be pushed out of the shop by any member of staff and that the complainant was not discriminated against. 

Ms H stated that the complainant acted in an aggressive and extremely vexatious manner.  At no stage did he say to Mr J that he had documentation that exempted him from wearing a mask and that the only person who was informed of this was the Garda who arrived more than ten minutes after the complainant had first arrived at the shop.  Ms H stated that the respondent was obliged under government and HSE protocols and guidelines to ensure that the business was a safe and compliant workspace, as well as a safe and compliant shopping space.  She stated that in this regard the use of face coverings was used for the protection and safety of both shoppers and staff alike and she stated that in indoor spaces such as their store, it was an important measure as keeping a physical distance of 2m at all times could be difficult and not always practical. 

She stated that the respondent was hugely cognisant of the staff and the need to support their safety and to support them emotionally in the particular circumstances.  She stated that the respondent had an overriding duty to their employees to ensure that the workplace was safe for them.  She stated that racial abuse by the public is never accepted and any member of the public who is racially abusing a staff member will not be served.  Ms H stated that it is normal practice for the company to request that all shoppers wear a mask in the store and sanitise upon entry.  She further stated that any customer who is exempt from wearing a mask on medical grounds and who informs a staff member and knowing what appliance they wish to purchase, will be served quickly and efficiently by a member of staff.  Again, she stated that with government guidelines and in the interests of safety of staff and other customers, browsing in the store was not permitted. 

Ms H stated that at all times the respondent adhered to and will continue to adhere to all government, Department of Health and HSE guidelines.  She stated that the potential risk, both from a safety and reputational point of view, of non-compliance with these guidelines and the potential outbreak of the virus connected the store would be calamitous.  She stated that the respondent must ensure that the health and safety of all staff and customers remain their number one priority.

Witness evidence Mr NM at first hearing on 29 April 2022:

Mr M confirmed that he was a sales assistant in the store and that he became aware of the situation at the store entrance on the date in question, that he did see the complainant duck under the barrier and that he saw that it was becoming a somewhat aggressive situation.  He said that the complainant had his voice raised and that he could see that he was trying to film Mr J.  He stated that he also saw Mr J asking not to be videoed and he could see that he had his hand up to say to the complainant please do not record me. 

He stated that the complainant said stop hitting me and backed away and that he (Mr. M) was trying to deal with the queue of customers at the time but that when he came back later, just before the guards arrived, he saw that Mr J was not happy and that he referred to the racist comments made by the complainant.  He stated that Mr J was very upset at the comment. 

Mr M stated that he saw the guards speaking to the complainant and he did hear the complainant confirm to the guards that he had a note and he said he moved away at that time as the guards were speaking to Mr J directly. 

The complainant put it to Mr M that nobody seemed to appreciate how upsetting the incident was for him and Mr M responded that yes, they understood that he may have been upset by the incident as well but that they were simply complying with government policy and that he had not produced a valid cert to them and as they understood it, he had not produced a valid cert to the Garda either. 

Mr M confirmed that he was within earshot of the complainant and Mr J and that he was very clear that Mr J did not want to serve the complainant because of the racist comment. 

Witness statements:

At the first hearing, the respondent provided copies of witness statements provided by Ms B and by Mr J and unfortunately on the day neither witness was available to the hearing and so the hearing was adjourned to allow for their witness evidence to be made available to a subsequent hearing.  In addition, both parties wished to consider whether they wished to call the relevant member of An Garda Síochána to the subsequent hearing. 

Evidence given at second hearing on 1 September 2022

Content of Witness Statement provided by Mr. J:

In his written statement Mr. J confirmed that he was the assistant store manager with the respondent and that due to the pandemic, all retail stores took advice from government and HSE regarding the wearing of masks.  He stated that this was implemented in all retail stores and that the approach taken was to ensure the safety of staff and customers across all stores in Ireland. 

At the hearing he stated that on 17 January 2021, the complainant came into the shop without a mask and was not willing to comply with the store policy on the wearing of masks.  He stated that he politely offered the customer a mask as the store always keeps a batch for customers who forget, as this happens frequently in the store.  He stated that the complainant then refused to comply and stated that he did not need to wear a mask and that Mr J would have to serve him no matter what he had to say.  He stated that the complainant started to get irritable and spoke in a different language which he could not understand at all.  He stated that as he was trying to advise the customer on safety of staff and politely ask him if he would be okay with him escorting him to his preferred destination of product, the complainant jumped the barrier which had been put in to create a one-way system to ensure social distancing.  He stated that the complainant jumped under the barrier and then he took out his mobile and started recording him.  Mr J outlined that he had told him that he did not have permission to do so and that he put his hand up in front of his face to order to not allow him to take a video image of him.

He stated that at this point the complainant then started shouting at him “why is there not a sign outside that says no blacks allowed in the store”.  He stated that when the complainant realised that he had an audience, he quickly changed the topic stating that he meant his shoes, Mr J said that at that point he was disgusted because he was not Irish and not white.  He stated that during all of this he quickly told the receptionist to call the local Garda who arrived within about 10-15 minutes. 

He stated that the Garda then approached the complainant and that the complainant pulled out a letter stating that it was a doctors’ note.  He stated that prior to that he had never told him that he had a doctors’ note and that he presented it to the Garda at that time.  Mr J stated one of the officers approached him and told him that the letter was a doctors’ note advising him not to wear a mask but that it was not a disability at all.  He stated that the Garda asked him if he would be willing to let the complainant in to the store without being aware of the racial incident that had occurred. 

Mr J stated that he told the officer about the racial abuse that went on before they arrived, and the Garda apologised to him and told the customer that he couldn’t enter the store due to the racial abuse that he had given.  Mr J stated that the complainants’ reaction to this was not to deny it but to clearly state that he would sue Mr J and the store for discrimination.  Mr J stated that as a man of colour he had never experienced anything like this or been embarrassed like this in public before as he was only doing his job as the manager of the store. 

Witness evidence Mr. J (1 September 2022)

At the hearing Mr J stated that when the pandemic occurred the store responded by putting in place all of the government guidelines in relation to wearing of masks and in relation to social distancing.  He stated that in that context they had put in a two-way barrier system to streamline customers coming in and out of the store in order to protect staff and to maintain social distancing.  He stated that approximately 90% of customers attending the store were wearing masks but that there were a few customers at any one time who couldn’t do so and that they were assisted in completing their purchases.   He also stated that at the time only a small number of customers were allowed in at any one time into the store in order to maintain the required social distancing. 

Mr J stated that he noted that as the complainant approached, he was not wearing a mask and he approached him to offer him a mask.  He stated that the complainant refused on the grounds that he did not need to wear a mask.  Mr J stated that he asked him if he could show him something to support that position.  Mr J stated that the complainant said he didn’t have to tell him and that as he turned away from the complainant the complainant jumped the barrier and started filming him with his phone.  He stated that he had to stop the queue because of this behaviour and that the complainant shouted at him, “what if there was a sign up that said no blacks allowed in the store”. 

He stated that the complainant had become very aggressive and that he said to the complainant, “why did you have to go there?”.  He stated that the complainant responded, “I meant your shoes”.  Mr J stated that he tried to get the complainant to stop recording him and that he asked him a number of times to stop recording and put up his hand to stop the recording.  He stated that he had asked the receptionist to call the guards and that the guards came and spoke to the complainant. 

He stated that at that time the complainant took a note out of his pocket and that the guards stated that the cert did not comply.  He stated that the guards and the complainant left together. 

Mr J stated that the complainant became aggressive after he had gone under the barrier, that he had been asked if he would mind sanitising and wearing a mask and that when Mr J turned around, he found that the complainant had ducked under the barrier.  He stated that he had had a customer earlier that day who had a disability, who had attended the store with his wife, and he stated that the wife had worn a mask on the day and that they both had fully cooperated with the respondent in completing their shopping.  Mr J stated that the complainant was asked if he had a mask and when he hadn’t, he was offered a mask, but he refused to wear it.  Mr J stated that the company was simply abiding by government guidelines and that the complainant didn’t want to comply, and in that context, he went under the barrier, and he said that he didn’t have to show any evidence.

 In response to questions from the Adjudication Officer, Mr J confirmed that he could not remember if the complainant had said that he had a doctors’ note but he confirmed that the complainant had become very irritable and aggressive.  He again confirmed that he had witnessed the complainant show the piece of paper to the Garda but that the Garda had indicated to him that the cert did not really comply with the requirements of the exemption.  He stated that the Garda had asked him would he let him in, but Mr J stated that he advised the Garda that because he had been racially abused, he would not let him in.  He said the Garda went back and had a discussion with the complainant, but he could not overhear that conversation and the Garda and the complainant left the store together.  He stated that he was no longer working with the respondent. 

Cross examination of Mr. J:

The complainant asked Mr. J if he remembered saying to him that he had to wear a mask and the complainant said that yes, he did recall.  The complainant also asked Mr J if he remembered the complainant asking him who he was and he said no, he could not remember that.  The complainant put it to Mr J that he was not wearing a nametag at the time and that Mr J had said to the complainant that he didn’t have to give his name.  Mr J confirmed that he did recall saying that he didn’t have to show him anything and he said that he remembered saying to him that he was refused entry at this time. 

The complainant put it to Mr J that he had not jumped the barrier, that he had gone under the barrier and Mr J said that when he turned around, he realised that the complainant had come beyond the barrier, but he didn’t actually see how he had come through the barrier.  The complainant asked Mr J if he kept CCTV footage of the incident and Mr J stated that the CCTV footage would be gone after 30 days.  The complainant also put it to Mr J that he had said “no mask, no service bro” to which Mr J responded that he did not exactly recall what he had said but that he had advised him that he could not enter the store without the mask. 

Mr J stated that he didn’t specifically remember everything that was said but he did remember the complainant taking video footage on the phone.  He stated that regardless of what he had said, there was a sign up at the front, that did say, no mask, no entry.    The complainant put it to Mr J that it was not a question of a racist comment to Mr J that he might well have said no gays allowed, and Mr J said that at no time did the complainant mention gays, that he felt that the fact that the complainant thought it was okay to say no blacks to him, showed to him the kind of person that the complainant was and he said that when the complainant saw how shocked he was by the comment, he tried to turn it into a comment about his shoes. 

The complainant asked Mr J if he remembered that he told him that he couldn’t use a mask, that he had a medical condition, as opposed to he wouldn’t wear a mask and Mr J said that what he recalled the complainant saying was that he didn’t have to wear a mask.  Again, the complainant asked if he informed him that he could not wear a mask to which Mr J responded that he recalled the conversation but what he recalled the complainant saying was that he would not wear a mask.  Once again, the complainant put it to Mr J that he had stood in front of him for a third time to inform him that he cannot use a mask, to which Mr J responded that all he could remember being said by the complainant was that he did not have to wear a mask.  He further stated that he recalled asking the complainant if he had any documentation to support why he wasn’t wearing a mask and that he recalled the complainant saying to him that he did not have to present the document to him. 

Mr H, on behalf of the respondent then questioned Mr J and asked him to confirm if he was wearing a uniform on the day he was working and Mr J confirmed that he was wearing a staff uniform and Mr H asked if it was clear from that uniform that he was a staff member and Mr J said that he believed that it was clear that he was a member of staff. Mr H asked Mr J if he recalled seeing the complainant come in under the barrier and when did this occur and Mr J stated that the complainant started to become aggressive in relation to the question of mask wearing and that he briefly turned away and that when he looked back the complainant had entered the store beyond the point of the barrier.  Mr H asked Mr J if there were HSE signs up in relation to mask wearing and Mr J confirmed that there were. 

Witness statement provided by Ms. B:

In her witness statement Ms. B confirmed that she was a receptionist working with the respondent and that she was working on the reception desk on the date in question.

Ms B stated that there was a barrier system in operation and that as members of the public approached the barrier they were requested to sanitise and to wait for a salesperson to direct them to their area of interest.  She stated that the assistant manager, Mr. J, approached the complainant on the day in question as he aneared the barrier and asked him to sanitise and offered him a mask as he didn’t have one. 

She stated that the complainant immediately got angry and refused to wear a mask and also refused to give a reason as to why he couldn’t.  She stated that she was concerned immediately because of the way the complainant was staring at Mr J and also because of his tone.  She stated that he didn’t seem to want to explain or waste his time giving reasons.  She stated that the complainant then very abruptly ducked under the barrier and proceeded to force his way into the shop.  She stated that at this point Mr J stood in front of him to stop him as everyone was nervous because of his aggressiveness.  She stated that he still didn’t want to listen to reasoning from Mr J and that he continued to have an aggressive manner.  She stated that during this time he asked Mr J “why was there no sign on the door saying no blacks allowed”. 

She stated that when the guards arrived, he definitely calmed down and proceeded to give them a reason why he couldn’t wear a mask but at this stage he was refused entry because of the fact that he had behaved in a racist manner towards Mr J and had made staff feel extremely uncomfortable.

Witness evidence given by Ms. B:

Ms B stated that she recalled the events of the day very clearly, that she had been working with the respondent for 16 years and that she very seldom felt afraid in the workplace. She stated directly to the complainant that from the second he came into the store she became anxious about his behaviour.  She stated that there were two staff members who had underlying conditions and that they were very afraid and very nervous in the context of the pandemic. 

She stated that when the complainant came to the barrier, he was asked to wear a mask and to sanitise and that she saw him staring in an intimidating manner at Mr J.  She stated that she immediately thought that there was going to be trouble.  She stated that Mr J asked the complainant if he had any documentation to confirm that he could not wear a mask and she said that they were aware that there were a small group of people who didn’t have to wear masks and she said that when they were provided with information there was never any issue in letting them into the store. 

She said that immediately she could see the complainant becoming aggressive and that the whole situation escalated very quickly.  She said that the complainant got very “high and mighty” and she said that she heard the complainant say to Mr J that he didn’t have to give him any documentation.  She said that after breaking through the barrier it was only then that the complainant mentioned the certificate and that she was fairly certain that that was the case.  She said that staff felt very threatened, that the complainant was very aggressive towards Mr J and that she asked him if he needed her to call the guards. 

She said the complainant did not respect the rules at all and that this was the only incident during the pandemic where she had felt the need to call the guards.  She said that there was a lot of nervousness and fear on the side of staff, working in the context of the pandemic and particularly the two vulnerable staff members who were very anxious about being in the workplace at the time.  She also advised that they were anxious about the care of other customers who might also have medical conditions. 

She stated that if the complainant had been polite and respectful on the day, that they would have been able to talk to him and would have been able to resolve the matter.  She said that it was only when he took out the phone and started videoing that he mentioned the doctors’ certificate and that he toned back down, and that he further calmed down when the guards arrived but that prior to that the staff were very fearful in relation to his aggressive behaviour. 

Cross examination of Ms. B:

The complainant asked Ms. B if she remembered his answer and she said he was asked the standard questions about a mask, could he pop on a mask, and that in response he said, no, I don’t have to.  The complainant then asked where she was at this time, was she right behind the desk, and she said that she was, and she said she could clearly see him and that he had come up to Mr J and that he had immediately had an aggressive manner.  The complainant asked her if she could hear from that distance and she said that the reception desk was quite close to the barrier and that she easily hear what was being said and that while she didn’t recall every detail, she remembered the general thrust of the conversation.  The complainant asked her if she recalled him saying to Mr J that he was informing him that he was starting to film and she said she did recall him saying to Mr J that he was informing him that he was taking video footage and that Mr J told him that he did not give his permission for the complainant to film him and she stated to the complainant “if you had kept calm, we would have been able to see the note and you could have been taken to the location you required”.  In response the complainant stated to Ms B that he didn’t have to produce his private documents and that Mr J had said to him there was a good online service and why not use that.  Ms B stated that it was possible to use the online service and that was always an option available to any customer.  Stated that the shop had a very clear policy in relation to dealing with any racist abuse, that it was not tolerated from anybody in the store and that was why ultimately the complainant was not served. 

Preliminary Matter:

The complainant had sought that the matter be held in private and that an anonymised decision be issued consequent to the hearing.  The respondent did not object to this course of action.  Taking into account the medical evidence provided by the complainant it seemed reasonable to me that his medical condition should remain a private matter and in that context, I have exercised my discretion to anonymise this decision.

Consideration of video footage on phone:

The complainant had sought that the video footage taken by him on his phone on the day of the incident be used in the Adjudication Officer’s deliberations and had provided this information in advance to the Workplace Relations Commission.  The respondent raised concerns in relation to the use of the footage on the following basis:

·       The footage predominantly related to Mr J who had at all times objected to the footage being taken

·       The footage was taken by the complainant and did not show the detail of the entire event from beginning to end but rather reflected only the element of the incident which the complainant chose to film

·       Elements of the footage had been put on social media and the respondent believed the footage to have been edited since it was first taken

Having considered this matter between the first and the second hearing, I advised the parties at the second hearing that I had not viewed the video footage and nor was it my intention to take it into evidence in relation to the case.  I was concerned that where the complainant was aware that Mr J objected to him being filmed on the day, that the complainant had proceeded to film him despite those objections and had submitted the video footage without Mr J’s agreement or approval.    Furthermore, I accepted the respondent position that the footage only related to part of the interaction on the day, as it was clear from the evidence of both parties that the complainant only began filming after he had entered the store beyond the barrier. In all those circumstances, I did not consider it appropriate to take the video footage into account.

The Substantive Case:

This is a complaint of discrimination pursuant to the Equal Status Act.  It is on the grounds of disability.  It relates to 17 January 2021 when the complainant called to the respondent retail store.  The complainant did not complete his intended transaction as he was not allowed to enter the premises.  The detail of what happened and what was said is disputed though the overall incident itself is not in dispute, however the detail of what occurred and what was said is disputed. 

The CCTV footage was no longer available, and the video footage taken by the complainant in relation to a portion of the incident has not been considered by me as set out above. 

The complainant did provide details of his medical condition certified by a medical practice which stated that he was not comfortable wearing the face mask due to a past medical condition and I accept that this may have provided sufficient grounds to be classed as a disability.

Statutory background, section 31a of the Health Act:

The parties referred to exemptions as set out under SI 296/2020, which came into force on 10 August 2020.  This required the wearing of face coverings in designated locations.  SI-296/2020 also made provision for “reasonable excuse” for a person attending a designated premises, such as a store, without having to wear a mask.  This included a person who could not wear a mask due to a disability.

It is worth bearing in mind that SI-296/2020 and the other regulations were promulgated to address the “immediate, exceptional and manifest risk posed to human life and public health by the spread of COVID-19”, as set out in section 31 of the Health Act 1947 (as inserted at the start of the pandemic).  It was not disputed in this case that COVID-19 is an infectious disease which is transmitted through the air.  It was also not disputed that face coverings provide protection against the transmission of the disease. 

The threat to public health was real and immediate.  In O’Doherty and Waters versus Minister for Health [2022] IESC22, Hogan J described the public health impact of the pandemic in Ireland in the following terms: “The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of COVID-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated”. 

Statutory background - Equal Status Act:

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms: “4. (1) For thepurpose 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”.

Application of the Law to the facts:

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonable in this case must take account of the pandemic, as reflected in the language of section 31a and the words of Hogan J.  This must take account of the fact that retail premises were open for members of the public to attend, including vulnerable groups.  It must also take account of the fact that the premises were only able to open because employees attended work, irrespective of the risk to them and their households. 

Section 4 (4) refers to: “Harm” and it was not disputed in this case that COVID-19 could be a fatal disease that also caused long term debilitating consequences, at least for some.  It was also not disputed that face coverings reduce the transmission of the disease, and therefore, dissipated harm.  It was reasonable for the respondent to ask and even insist that customers wear a face covering, when this mitigated harm.  There was therefore no discrimination. 

As noted, there was a conflict in evidence regarding what was said, including what was alleged to be a racist comment.  I found the complainants’ evidence that he was merely using the comment in relation to no blacks allowed to be a simplification of what occurred on the day and the evidence that he changed his comment to be about Mr J’s shoes to be somewhat incredible.  I found the evidence given by Mr J to be credible and I particularly found the evidence given by Ms B to be credible in this regard.  It seems to me that the complainant behaved towards the staff in an aggressive and pushy manner and that he caused a deal of anxiety and fear amongst staff who were already feeling vulnerable in the workplace, and I accept that the reason for the ultimate refusal to allow him access to the store was because of his aggressive behaviour and his comment, which was perceived as racist.  In these circumstances, I find that there was no discrimination on the part of the respondent. 

CA-00042366-001:

The respondent did not behave in prohibited conduct in respect of the complainant and did not discriminate against the complainant.  In these circumstances it is my decision that this complaint was not well founded.

Discrimination on the prohibited ground of disability