Complainant

Respondent

Anonymised Parties

A Customer

Retail Outlet

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047875-001

23/12/2021

The Complainant submits that he was discriminated against by way of harassment on the ground of disability in the manner in which the staff at the Respondent retail outlet confronted him for not wearing a mask during the Covid-19 pandemic, and also that his disability was not reasonably accommodated. The Complainant has the lifelong condition of Asperger’s Syndrome, a form of autism spectrum disorder. The Respondent is a retail outlet for domestic electrical and general hardware goods. The Respondent accepts that the Complainant has a disability as defined under the Equal Status Acts 2000-2015 (hereinafter “the Acts). Both parties accept that the Complainant was allowed to purchase goods on the day.

The Respondent rejects the complaint of harassment on the grounds that the Complainant did not disclose that he had a disability on the day in question and furthermore than any approach to the Complainant was a lawful action.   

The Evidence of the Complainant:

When the Complainant arrived in the store on 14 September 2021 at approximately 8.45 a.m.  a blonde female called on him and   asked him why he wasn’t wearing a face covering. The Complainant told her that he was medically exempt. She then told him that he “needed to register". He responded by saying that he wasn't obliged to and continued to the plumbing department. As he was picking up the item that he needed, he was approached by a male, Mr A, who asked him if he needed a face covering. The Complainant informed him that he was medically exempt.

As the Complainant made his way out of the aisle, he was approached again by Mr A, who was not 2 metres from him, asked if he had a medical certificate, which he truthfully responded to in the negative.  The Complainant said he produced his JAM card (Autism Identification) which states, that he is autistic. He observed another person to his left and he asked the person if he was a member of staff. He informed that person that he was not legally obliged to have a medical certificate under Section 5 of SI 295 of the 2020 Regulations (hereinafter “the Regulations”). At this stage, another male, who he was informed later during a phone call was the Mr B, the shop manager, said that he was going to phone the Gardai. The Complainant requested that Mr B that the Complainant’s name would be mentioned to the Gardai as they know of his medical exemption. At this stage Mr A tried to tell him that he was wrong with regard to the construct of the Regulations.  Mr A kept on stating that there was a legal requirement to be in possession of a medical certificate. He again told Mr A that he did not have a medical certificate.  The Complainant stated that he had a letter of exemption from his GP. The Complainant offered to show him this whilst stating that he was under no legal obligation to share this with him. Mr A was willing to examine his phone but as he  was in the process of getting the exemption letter  onto his  phone for him to read, Mr B  returned. He instructed his staff members to walk away from the Complainant because the Gardai were on the way. Mr A did not wait to see the letter.

The Complainant proceeded to the till, where there was no issue in taking his money for the item. He showed the female till operator, Ms C, the letter of exemption and asked her to appraise her manager of this. The Complainant claims Ms C then got quite uptight and made a statement to the effect, that if he had shown this in the first place, there would have been no problem; he (the Complainant) was the person who caused the issue. He informed Ms. C that there was no legal requirement for him to do so. He responded that he was asked to register and not told to produce anything by the female concerned. The Complainant submits there is no legal requirement for anyone to register whilst entering a store under any Covid-19 related legislation.

The Complainant rang the store later at approximately 9:40 a.m.  that morning and asked to speak to the proprietor.  He was informed that he was at a trade show in Poland and that he would not be back until the following week.  He then decided to ring the store again and asked to speak to whomever was in charge as he wanted to complain about the manner and the way he was treated. After a delay of approx. four minutes, he was informed that the manager was unavailable. When he described the person, he established from the female who answered the phone that this was Mr B. She later identified herself as Ms D. The Complainant asked her for the name of the Data Protection Manage for the store as he would be seeking a copy of the CCTV and she said that she could not provide him with the identity of the person as she did not know who had that responsibility.  

In cross-examination the Complainant accepted that he visited the shop on a number of occasions and did not encounter any problems before the Covid-19 restrictions. It was put to the Complainant that a number of witnesses would testify that there was no blonde female employee at the material time, and perhaps it may have been a member of the public. The Complainant stated he was certain that she was an employee. Counsel furthermore put it to the Complainant that the evidence would show that the Respondent never held a register during that period. It was put to the Complainant that section 4(4) of the Regulations states “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.” and that  the word “shall” puts an obligation on the a business owner to engage with a person not wearing a mask, and therefore it is  not illegal to approach such a person. The Complainant accepted that was the wording. It was put to the Complainant that he cannot claim harassment because he never informed any member of staff that he was autistic. The Complainant disputed that and said he had shown Mr A the JAM card. It was put to the Complainant that the Gardai were called because he, the Complainant, was shouting. The Complainant denied he was shouting but accepted that he was angry.  

Detective Garda X appeared as a witness and gave evidence that it was his recall that he and his colleague were despatched to an incident at the Respondent premises in respect of the Covid Regulations.

Complainant’s Closing Statement:

The Complainant contends that there were severe issues of recollection with the Respondent witnesses, particularly the Shop Managers evidence that did not coincide with that of the Garda when it came to the reason for calling the Gardai. He was also concerned about the falsehoods that were perpetrated against him in evidence, especially how he deported himself in the call to Ms D.  The way he was treated in the shop was harassment as defined and this harassment was on the basis of his disability.

Summary of the Evidence of Mr E, Shop Proprietor.

The witness gave evidence of how the shop was a family-owned business and that the priority during Covid-19 was to ensure the safety of staff and customers. He stated that they brought in an outside consultancy firm to advise and train staff. He said that people who could not wear masks for medical reasons were always accommodated. He was upset to hear of the discrimination claim because two of his children suffered from disabilities. He gave evidence that the company were sponsoring an autism charity as well as facilitating the use of the premises for the training of companion dogs for those with autism.

Summary of the Evidence of Mr A, Retail Assistant:

The witness testified that there was no blonde female employee in the store at the time. Hoe stated that   the Complainant passed his desk and was not wearing a mask. He approached the Complainant in the manner he was trained and asked him if he would like to wear a mask. The Complainant was in the plumbing section and replied, “I don’t have to wear it””. The witness told him that it was company policy to wear the mask. He said the Complainant was getting angry and raising his voice and was scrolling quickly on his phone. The Complainant put his hand in his pocket and took it out again saying “I don’t have to show you anything”. The witness said that witness did not produce any documentation for him.  Mr B, the manager then appeared on the scene and said to the witness “please move away” for his own safety.

In cross-examination the Complainant brought it to the attention of the witness that the aisles were narrow and that he (the witness) was in effect blocking the Complainant’s shortest way to the till. The witness replied that hat he could have gone another route as well, up a different aisle. The Complainant put it to the witness if he (the witness) recalled walking down with him. The witness replied in the negative.  

Summary of the Evidence of Mr B, Shop Manager:

The witness stated that he heard a raised voice and immediately went to enquire. He came upon the Complainant and Mr A. He stated that the Complainant was shouting, and he advised Mr A to move away for his own safety and that he was going to call the Gardai.  He called the local Garda station and asked for assistance because there was a disturbance in the store. When it was put to the witness that the evidence of Detective Garda X was that they received instructions to go to the shop in respect of the Covid Regulations, the witness was adamant that he told Gardai it was in relation to a disturbance at the shop.

Summary of the Evidence of Ms. C, Till Operator.

The witness stated that there was no woman with blonde hair working in the shop at the material time. She heard shouting coming up the shop floor and saw the Complainant approach her. He seemed very cross, and she became nervous at the till. He never told her he was autistic. She said in evidence that if he had showed an exemption, it would have been a different story from the start. The witness said she was the designated Covid-19 Regulations officer in the store. The norm was that people would approach a member of staff initially if they had a problem wearing masks and they would be facilitated.

In cross examination the witness could not say if the Regulations, nor HSE guidelines, stated that there was a requirement to produce an exemption document. In re-direct, the witness said she was not shown the JAM card on the day.

Summary of the Evidence of Ms D, Office Administration Worker.

The witness gave evidence of taking a phone call from the Complainant, before 10 o’clock on the morning in question where the Complainant was seeking to speak to the owner, who was out of the country, and also requesting CCTV footage. She said the Complainant was aggressive to her and used foul language. He also remarked about her surname. The witness gave evidence that there was no blonde female employee working in the shop at the material time.

The Complainant took grave exception to this evidence and said that he never used the language described and wished to call a witness whom he claimed was in his company during this phone call and would attest that he did not use the language so described. (The Complainant sought an adjournment of the case at this stage, so that the witness could be called. I refused the application on the basis that we were near the end of proceedings, and he already had been facilitated with the issuing of subpoenas for members of the gardai. Moreover, the phone call at issue was not  pivotal  in the determination of the  case).

Respondent’s Closing Argument:

The Respondent submits that the Complainant must first of all make out a prima facie case under section 38A of the Acts. The Respondent submits that under the Regulations there was an obligation on staff to  approach those who were not wearing a mask. The Respondent asserts that the  evidence of the witnesses was that there was no blonde female employee working in the shop at that time. The Respondent asserts that the matter was escalated by the shop manager when he saw that the Complainant was shouting in a loud voice, and he feared for the safety of a fellow staff member. Furthermore, the Respondent argues that the witnesses on the shop floor categorically stated that the Complainant had not told them he was autistic, nor did he show the JAM card as alleged. The Respondent contends that the Complainant has not therefore, made out a prima  facie case.

The Respondent accepted that the Complainant had a disability for the purposes of the Acts, and both parties agreed that Complainant was not denied goods and services  the day. The Complainant is arguing that he was harassed on the basis of his disability and also, as alluded to in the ES1 form, that his disability was not accommodated. I have to decide whether the manner in which the Complainant was challenged in the shop and the subsequent escalation when the Gardai were called amounted to harassment, and also whether his disability was reasonably accommodated  on the day. However, I must first establish if the staff involved had actual or implied knowledge of his disability.

Section 11 describes harassment under the Acts as follows:

11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

(c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority.

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The ‘Reasonable Accommodation’ provision in the Acts, in its relevant part, at section 4 provides:  

(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) 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.

(3) 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.

The Burden of proof provision at section 38A provides

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Firstly, the Complainant must establish the primary fact under section 38A that the staff were aware of his disability on the day in question. Then, I must determine whether the conduct of the staff had the purpose or effect of violating  the Complainant’s  dignity with due  regard  to the context in which the approach was made in the circumstances  that prevailed during the Covid-19 pandemic.

When the Complainant first entered the shop without a mask, he stated that “he was certain” that the blonde female who approached him initially was an employee who had told him that he had to register. However, the categorical evidence of three of the Respondent’s witnesses was that there was no blonde employee, and moreover, that there was no Covid-19 contact register in the shop, nor was there an obligation under the Regulations to keep one. I therefore find that, on the balance of probabilities that it was a customer, and not a staff member who first approached the Complainant.

The Regulations require at 4(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. This establishes that Mr A lawfully approached him citing the requirement to wear a mask. The uncontested evidence shows that the Complainant stated that he was exempt. However, the Complainant stated that he showed Mr A his JAM card, whilst Mr A’s evidence was that the Complainant said to the Mr A “I don’t have to show you anything”, and according to Mr A was scrolling his phone at this stage and attempted to take something from his pocket, did not do so, and repeated his reluctance to show exemption of any kind. I preferred thew evidence of Mr A, which I found to be more consistent, on the point that no documentation or proof of disability was shown to him.  The Manager then appeared, after he heard what he claimed was the shouting from the Complainant.  When the Manager proceeded to call the Gardai, the Complainant, in his own evidence said to the Manager to mention his name to the Gardai as they know of his exemption. This strongly suggests that the Complainant had not informed anyone of his disability up to that juncture. Moreover, in his own evidence, when the Complainant got to the till, he stated that he   showed the till operator, Ms C, the letter of exemption and asked her to appraise her manager of the exemption. Furthermore, the Complainant acknowledged that she said, to the effect, if he had shown this in the first place, there would have been no problem.  I can confidently draw a factual conclusion from the foregoing account of the incident at issue, and the aftermath, that the Complainant did not at any stage in his interactions  with Mr A or the Manager , inform them that he was autistic, either by production of a card or otherwise. Therefore, he did not establish the primary fact that staff knew of his disability at the material time. For a claim of harassment, or not providing reasonable accommodation on the grounds of disability, to succeed a complainant must first establish that a Respondent has actual or implied knowledge of a disability therefore I find that the Complainant did not establish a prima facie case that he was discriminated against.

I find that the Respondent did not engage in prohibited conduct under the Equal Status Acts 2000-2015.

Equal Status Act 2005, Disability, Mask-Wearing, Covid-19.