Complainant

Respondent

Parties

Veronika  Podmanicka

Brandmax Ltd (also T/A Sports Direct)

Complainant

Respondent

Anonymised Parties

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Representatives

 Kennedys Law

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042976-001

10/03/2021

The background to this complaint was the Covid-19 pandemic and the Respondent’s requirement that customers wear a face mask on its premises. On foot of this the Complainant has alleged discrimination and harassment on the disability ground and failure to provide reasonable accommodation. The Respondent disputes and rejects the complaints on the basis of objective justification, that it was following prescribed regulations at the time and that the Complainant was treated no differently to any other customer.

1.       In advance of the adjudication hearing  the Complainant furnished medical evidence from her GP dated 16 June 2021 and 23 October 2021 and letters from her Counsellor dated 18/10/2020 and 23/9/2021. The Respondent indicated that it was not disputing the medical documentation.

2.       Section 21 of the Equal Status Act [2000-2018] prescribes that a Complainant shall, “within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence…” notify the Respondent in writing of the nature of the allegation and the Complainant’s intention, if not satisfied with the Respondent’s response, to seek redress under this Act. After some discussion and a short adjournment, the Complainant clarified that the date of alleged discrimination was 29 December 2020. The Complainant identified different dates for the ES1 Form and she could not remember when she sent the ES1 Form to the Respondent. The Respondent stated that it received the ES1 Form directly from the WRC on 17 September 2021 though by then it had been notified by the WRC of the complaint. Separately, the Complainant notified the Respondent of her complaint by emails of 29 December 2020 and 1, 7, 8 and 11 January 2021 which were acknowledged by the Respondent

3.       This case was listed under two ADJ numbers – ie ADJ-00034888 and ADJ-32926. As I heard all matters in the course of the adjudication hearing on 8 August 2022 I am filing the decision under ADJ-00034888 and advising the WRC to close ADJ-32926.

The Complainant alleged that she endured “a very shocking and stressful experience” whilst shopping at the Respondent’s store between 4.30 and 5.05pm on 29 December 2020. The Complainant explained what occurred and that she was told by the Manager to wear a face mask or leave the premises and there was no other option. The Complainant stated that another of the Respondent’s employees “confronted and harassed” her in front of other customers about not wearing a mask. She stated this also occurred in front of her six year old child who was afraid and distressed by what occurred. The Complainant stated that she explained “again and again” that she was excused from wearing a face mask. The Complainant stated that she did not say that she had medical issues but that she did say she had health issues. The Complainant stated that the Respondent did not ask about any proof of her disability and just said it was the law. The Complainant stated that she suggested the Supervisor/Manager call the Gardaí but the Respondent declined. The Complainant stated that she “can’t remember much after that”,that she didn’t stay in the shop and “left after she spoke with the Manager”.  She stated that she did not feel comfortable.  

The Complainant was cross examined on her evidence. In response to a question the Complainant stated that she was in the store with her ex-partner and that he made a purchase on the day. It was put to the Complainant that her ex-partner was also not wearing a mask and she replied that she had presumed that he had gone to the car to get a face covering in order to make the purchase. In response to another question the Complainant stated that “she honestly believes [the Respondent’s Manager] didn’t say she can remain in the shop”.

It is the position of the Complainant that she was exempt from wearing a face mask, that she was “embarrassed and humiliated” by her experience and was harassed and discriminated against. The Complainant also stated that the Respondent failed to take any measures to accommodate her disability. The Complainant cited various provisions of  SI 296/2020 including her assertion that the SI does not contain any requirement or authority “to enquire into or request proof of a person’s reasonable excuse”.

The Respondent stated that on 29 December 2020, whilst present in its store, the Complainant was requested to wear a face covering as required by legislation at the time - ie SI 296/2020 and in accordance with Section 14 of the Equal Status Act [2000-2018]. The Respondent stated that the Complainant refused to do so and that she advised the Respondent’s employees that she was exempt from wearing a face covering. The Respondent stated that the Complainant did not disclose or identify any disability at the time. The Respondent stated that the Complainant was permitted to remain in its store, that she has provided no evidence that she was prevented from making a purchase and that she left the store of her own volition having made a complaint to the Respondent’s Supervisor/Manager.

The Respondent's Sales Assistant gave evidence that she remembered the day in question, that she saw a gentleman without a mask and advised him of the policy that he had to wear a mask. The Sales Assistant stated that the gentleman started going towards the Complainant saying that he had to leave the store. The Sales Assistant stated that the Complainant started shouting and said that she was not leaving. The Sales Assistant stated that the Complainant did not have a mask, that the Complainant started walking towards her and that she did not want to listen.  The Sales Assistant stated that she informed the Complainant of the policy to wear a mask but the Complainant was angry, aggressive, upset and was shouting that she didn’t have to wear one. The Sales Assistant stated that the Complainant continued to shop/browse. At that point the Sales Assistant called the Respondent’s Supervisor/Manager.

The Sales Assistant was cross examined on her evidence by the Complainant who strongly disputed and rejected that she acted in an aggressive or angry manner. In response to a question, the Sales Assistant maintained that she referred to the Respondent’s policy in relation to mask wearing. The Sales Assistant also stated under cross examination that the Complainant did not mention she had health issues but that she had stated she was exempt and knew what she was doing.

The Respondent’s former Supervisor/Manager gave evidence that at the time he was working downstairs and that the Sales Assistant came to him very upset stating that the Complainant was shouting at her. The Supervisor stated that he spoke with the Complainant, calmed the situation down and said to her that if she had an exemption to explain it and that he himself had asthma. The Supervisor stated that the Complainant responded that she didn’t have to tell anyone about her condition but that she did say she had health issues. The Supervisor stated that in response to this, he said “that’s okay” and that he advised the Complainant along the lines that she was welcome to stay shopping. He stated that he did not see the Complainant leave the store.

The Complainant was afforded the opportunity to cross examine the Supervisor/Manager but she  stated that she had no questions to put to him and that he had acknowledged she had referenced her health issues.

It is the position of the Respondent that it did not discriminate, harass or fail to provide the Complainant with reasonable accommodation. The Respondent maintained that the Complainant had not provided any particulars of unfair or unlawful treatment or conduct which could amount to discrimination or harassment on the disability ground. Nor did she provide any example of refusal to provide goods or services or any details that she was treated less favourably than any other person/customer in a comparable situation.

Preliminary Issue:

In relation to the requirement at Section 21 of the Equal Status Act [2000-2018], I note the parties respective positions in relation to the ES1 Form. I also note that the WRC advises there is no obligation to use the particular ESI Form and that a complainant can write their own notification providing it complies with all the requirements of the Equal Status Acts. In this regard, I am satisfied that the Complainant notified the Respondent of her complaint by emails of 29 December 2020 and 1, 7, 8 and 11 January 2021 which were acknowledged by the Respondent. In her letter of 11 January 2021, the Complainant outlined the nature of her allegation, she specifically identified the Equal Status Acts and she stated as follows: “Please be advised that failing an adequate response I intend to make an official complaint to the Workplace Relations Commission who hears complaints in relation to breaches of the Equal Status Acts”. In the circumstances I am satisfied that the Complainant complied with her obligations under Section 21 of the Act and accordingly I have jurisdiction to hear this complaint.

Section 2 of the Equal Status Act [2000-2018] defines disability as follows:

“disability” means –

(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”.

Section 3(1) of the  Act provides that 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)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons and in that regard, subsection 3(2)(g) provides as follows:

(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 5 (1) of the Equal Status Act [2000-2018] provides that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 (1) of the Act defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel……”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which she can rely in asserting that the prohibited conduct occurred. Accordingly,  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/respond to the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant 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 claimant 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 these primary facts are established 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 Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In light of the foregoing, I must decide whether or not the Respondent discriminated against the Complainant on grounds of her disability in terms of sections 3(2) of the Equal Status Act [2000-2018]. In reaching my decision, I have carefully considered the written submissions, documentation and the sworn oral evidence including from cross-examination, questioning and responses.

The Complainant contends that the Respondent’s insistence on her wearing a face mask on 29 December 2020 was discriminatory on the grounds of disability pursuant to the Equal Status Act [2000-2018]. It is clear there were exchanges between the Complainant and the Respondent’s Sales Assistant and former Supervisor/Manager on 29 December 2020 in relation to the matter of wearing a face mask. Whilst I note there was a conflict between the parties in relation to the nature of those exchanges, I am satisfied from the evidence that the Respondent explained to the Complainant that she was required to wear a face mask pursuant to government regulations and the Respondent’s policy at the time. I am also satisfied from the evidence, that the Complainant refused to wear a mask as she stated she was exempt, that in this regard she cited health issues and also stated that she was not required to provide proof of this.

Both parties cited the provisions of SI 296/2020 in support of their respective positions. However, the focus of my decision making and jurisdiction, is not the provisions or implementation of SI 296/2020 but rather whether the Complainant suffered discrimination on the disability ground contrary to the Equal Status Act [2000-2018]. Having considered all the evidence, submissions and documentation, I have come to the conclusion that the Complainant has not established sufficient facts of her alleged discriminatory treatment on 29 December 2020 for the following reasons:

·       The medical evidence submitted by the Complainant was dated 2021 apart from one letter from her Counsellor dated 18/10/2020 which was submitted for the purpose of the adjudication hearing. However, on the date of the alleged discrimination/29 December 2020, the Complainant did not submit any medical evidence nor did she state any medical condition which in my view would fall within the parameters of the legislative definition of disability. In that regard I do not consider her reference to health issues sufficient for the purpose of establishing primary facts to ground a claim of discrimination or harassment or failure to provide reasonable accommodation;

·       The Complainant has not identified any comparator who was allowed shop in the Respondent’s store on 29 December 2020 without a face mask. Nor has she shown that the Respondent’s policy on mask wearing was applied in a discriminatory manner. Accordingly, I am not satisfied that the Complainant has demonstrated differential treatment by the Respondent such as to constitute discrimination within the meaning of Section 3 of the Equal Status Act [2000-2018];

·       Having carefully considered the sworn evidence, on balance, I am satisfied that the Complainant was not asked to leave the Respondent’s store on 29 December 2020 nor was she prevented for availing of the services or goods within the Respondent.

In light of the foregoing, I find that the Complainant has not established a prima facie case of discrimination on the disability ground pursuant to the Equal Status Act [2000-2018].

CA-00042976-001

For the reasons outlined this complaint is not well founded.

Requirement to wear a face mask; Differential treatment