Complainant

Respondent

Parties

Emma  Murphy

Sostrene Grene Dun Laoghaire Home Decor

Complainant

Respondent

Anonymised Parties

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Representatives

Self-represented

Accompanied 

David O’Riordan, Solicitor,  Sherwin O'Riordan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048185-001

19/01/2022

The complainant’s case is that she was discriminated against by the respondent on grounds of disability on 22 September 2021 when she visited the respondent’s shop in Dun Laoghaire.  The complainant did not wear a face mask because of a disability.  The complainant asserts that the respondent did not provide her with reasonable accommodation.

The respondent submits the complainant did not provide proof of her medical exemption and therefore the respondent was entitled to refuse service to her. The respondent was following the law at the time during the Covid-19 pandemic.

The complainant sent an ES1 form to the respondent on 10 November 2021.

The respondent sent an ES2 reply form to the complainant on 23 November 2021.

The complainant lodged a complainant with the Workplace Relations Commission on 19 January 2022.

The complainant set out details of her complaint on the complaint form and provided a written statement and submission.  The complainant gave evidence on affirmation.

On 22 September 2021 the complainant went to the respondent’s shop in Dun Laoghaire in the late afternoon.  The complainant entered the shop and started shopping.  On the complaint form the complainant states she was threatened to put on a mask or leave.  She states that she clearly stated to the store person that she had an exemption.  The store person walked away to point out the signs on the door.  The complainant states that the store person ignored her when she asked for his name and the manager’s name.  The complainant was very anxious and humiliated when asked to leave the store.

In her oral testimony the complainant said that the store person approached her to put on a face mask.  She said she had an exemption, but she was asked to leave.  The complainant stated that the store person was not engaging with her.  The store person insisted the complainant put on a face mask but otherwise did not engage with her.  The complainant stated she just wanted to shop as normal and as she had done in the past.  As he was not engaging with her, she asked him to telephone the guards. 

The complainant waited in the shop for the guards to arrive.  She stated she felt embarrassed and humiliated.  She had an exemption card with her, but the store person did not engage with her.  The complainant called her husband into the shop.  He also told the store person that the complainant had an exemption.

The complainant stated that when the guards arrived, they said she was within her rights and that she should contact the Head Office of the respondent.  The complainant stated she instructed the guards to take the details of the store person.

The complainant sent e-mails to the respondent, but the respondent did not acknowledge that she was discriminated against. 

The following month the complainant went to the respondent’s shop in town.  The staff there were kinder, and she did not have to present her exemption card.  In conversation with the manager, she found out that both shops were owned by the respondent.  This surprised the complainant as her treatment was different in each shop.  The complainant left her telephone number and asked that the owner would contact her.  She wanted to talk with him about her treatment at the Dun Laoghaire shop.  The owner did not telephone her.

Mr Gerard Murphy gave evidence on affirmation.  He stated that he had been outside the shop while the complainant was inside.  He was called in by the complainant, he thought to help her with packing her purchases.  He stated the complainant looked frantic when he went into the shop.  He stated the complainant was not given an opportunity to produce her exemption card.  He stated he did not wear a face mask and was not asked to do so as the store person did not engage with him.

The complainant in her written submission referred to sections of the Equal Status Act, 2000 and S.I. 296/2020.  She submits she has a disability, autism.  She submits she had a disability exemption card, which she would have shown to the store person if he had let her.  She had to wait for 50 minutes for the guards to arrive and she was distressed and humiliated during this time.  She understood she had to wait for the guards.  The complainant asserts that the store person was abusing his position and he had no authority to keep her in the store.  The complainant asserts that such an act was done because he wanted to humiliate her. 

In her written submission the complainant states that when the guards arrived, she showed them her exemption card.  She had purposefully obtained an exemption card for the Autism Society of Ireland so that she could use it while shopping and she had it in her bag.  The complainant states that she told the store person that she was exempt and that she had an exemption card, instead of serving her as he was legally required to do, he harassed her and called the guards.

The complainant submits that the behaviour of the store person was unlawful.  His behaviour humiliated one of the respondent’s disabled customers.  The complainant asks that the amount of damages awarded reflects that she is severely disabled, the experience for her was traumatic, the failure to apologies or engage in conciliation aggravated the situation for her.  She was a loyal customer who deserved better treatment.

The respondent is a Danish retail chain operating four stores in Ireland, Dublin, Dun Laoghaire, Cork and Limerick.  The respondent provided a written submission and the sales assistant, Mr Harberg gave evidence on oath.

In the written submission the respondent set out the following description of events.  On 22 September 2021 at approximately 4.30pm the complainant entered the respondent’s store in Dun Laoghaire.  The complainant was not wearing a face mask and a sales assistant approached the complainant and asked her to put on a face mask, as per government guidelines.  Copies of the said guidelines were displayed throughout the store.  Photographs of the store were appended to the submission.

The complainant claimed she was exempt from wearing a face mask, but she did not produce any verification of her exemption.  The complainant asked the sales assistant to contact the Gardai.  The sales assistant telephoned the Gardai, and they arrived approximately 30 minutes later.  The Gardai informed the complainant that the staff can ask her to leave the shop if she did not produce verification.  The complainant only then provided proof of her exemption to the Gardai.

The sales assistant felt this incident made it difficult for him to complete his duties in the weeks following.  He felt anxious that the same thing might occur.  Previously, he had asked numerous customers to comply with the face mask policy and this was the first time when he encountered a customer who would not comply or produce proof of their exemption.

The complainant sent a complaint by email to the head office on 01 October 2021.  The respondent replied on 04 October 2021.  The respondent expressed sorrow that the complainant did not have a wonderful experience at the store and noted that the staff had made the correct decision in line with the current legislation.  The following day the complainant went to the respondents store in George’s Street in Dublin.  The complainant was not wearing a face mask but produced her verification of exemption to an employee, without having to be prompted.  The complainant told the employee about her experience in the Dun Laoghaire store where she was told to leave as she was not wearing a face mask.  The employee explained that they must tell customers to wear a face mask unless proof of exemption was provided.  If no proof of exemption is provided a customer would be asked to leave if not wearing a face mask.

The complainant sent another e-mail on 28 October 2021.  A form ES1 was received from the complainant on 29 October 2021.   The respondent sent an e-mail to the complainant on 03 November 2021 stating “you are welcome to visit our store in Dun Laoghaire, however, the store requires that you show your exemption card to a member of staff.” On 20 November 2021 the respondent sent an ES2 reply to the complainant outlining the position that the complainant never produced proof of her exemption until the Gardai attended at the store.

The respondent had arranged mandatory Covid Safety training for all store managers in May 2020.  All staff were emailed a copy of a government protocol checklist on 27 May 2020.  In November 2020 when the store was due to re-open staff were provided with information in relation to the law on face masks in the retail sector.  These measures were intended to ensure staff and customers were safe at all times.

Mr Harberg the sales assistant gave evidence on oath.  He confirmed that he had received health and safety training related to the Covid-19 virus.  The training included hand disinfection and the use of face masks.  Mr Harberg stated that some customers did come in without a face mask and when that happened, he asked them to put on a mask.  Usually the customer just forgot, some had a card and some had left their mask in the car.  He would ask the customer to leave the store and get their mask from their car. 

Mr Harberg stated that he asked the complainant to use a face mask.  She had said that she did not need a mask.  He then told her she must use a mask.  He stated that the complainant only told him that she did not need to use a mask, she did not say she had an exemption.  He then asked the complainant to leave, she refused.  He spoke to the owner by phone.  He had to call the guards.  A colleague helped by staying in the store with him as he did not have good English. 

Mr Harberg stated that Mr Murphy came into the store and he was not wearing a face mask. When the guards arrived, they spoke with the complainant and Mr Harberg separately.  Mr Harberg stated he never saw a medical exemption card.  He did not know what was given to the guards as he did not see what the complainant gave to them.  The complainant and the two guards left the store together.

In reply to questions from the complainant Mr Harberg stated he had received training before the store re-opened.  He stated he asked every customer to use a mask if they were not wearing one when they came into the store.  It was his work to ask the customers to put on a mask.  If they had a card and had left it in their car they were asked to leave and get the card.

In reply to questions from the complainant Mr Harberg stated that the complainant was not allowed to buy in the store because she did not have a mask.  Mr Harberg stated that he walked behind the screen at the till because he did not want to have contact with a person without a mask.  Mr Harberg stated he did not have further contact with the complainant because the guards had been called.

In re-examination Mr Harberg stated that he walked behind the screen at the till, just five metres away from the complainant, until the guards arrived.

Legal Submission

The respondent referred to section 38A of the Equal Status act noting that it is for the complainant to first establish a prima facie case of discriminatory treatment and only when such prima facie case has been established does the burden of proof shift to the respondent.  The respondent cited the decisions in An Accommodation Seeker v An Estate Agent ADJ-00006661, Dyflin Publications Limited v Ivana Spasic EDA0823, Madrassy v Nomura International plc [2007] IRLR 246 and Grant v The Department of Arts, Heritage and the Gaeltacht DEC-S2017-032, and McGregor v SR Clo Ltd t/a Synchro ADJ-00032564.

The respondent referred to S.I. 296/2020 which amended the Health Act, 1947 by including a mandatory requirement to wear a face covering in shops.  Section 4(1) of S.I. 296/2020 states a person shall not, without reasonable excuse, enter or remain in a premises where goods are sold directly to the public without wearing a face mask.

The respondent submits the complainant must prove that she was discriminated against due to her medical condition.  It is submitted that the complainant was asked to put on a face mask, in accordance with the law.  That is evidence of compliance with Statute and Government guidelines, not discrimination.  The respondent had an obligation to protect its staff and customers during a global pandemic, which it did by following Government guidelines.

The respondent submits the complainant did not provide proof of her medical exemption to the staff member on duty and therefore it was entitled to refuse service to her.  Mr Harberg did not know of the complainant’s disability as she did not show him her exemption card.  He had asked the complainant to put on a face mask, she chose not to do so and not to show her exemption card.

The respondent submits that no prima facie case of discrimination has been established.

CA-00048185-001

Complaint submitted under section 21 of the Equal Status Act, 2000.

The first issue for decision is whether the respondent discriminated against the complainant on the grounds of disability as described in section 3 of the Act.

I am satisfied that the respondent was providing a service within the meaning of the Equal Status Act.

Section 3(1) provides:

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,

Section 3(2) provides:

As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) … (f) …

(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”),

The complainant claims that she was discriminated against on the grounds of disability.  As required by section 38A of the Act the complainant must first establish a prima facie case of discriminatory treatment, before the respondent is require to prove the contrary. Section 38A (1) provides:

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.

This requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that the prohibited conduct occurred.  It is only when the complainant has established a prima facie case that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

The issues to be addressed are – did the complainant have a disability, did the respondent know she had a disability and was the complainant discriminated against by reason of her disability.

The complainant in her submission and her oral testimony stated she is a person with a disability.  The complainant did not provide any medical evidence of her disability, but she did submit a copy of a card issued by the Irish Society for Autism. The card does not identify the complainant by name.  The complainant also submitted a copy of an invoice in her name from 2018 for an autism assessment.

Section 2 of the Act defines disability as

“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;

The lack of medical evidence could be a problem, but the complainant presented as a truthful and courteous witness and stated she always carried her Irish Society for Autism card with her.  I am satisfied the complainant has established that she is a person with a disability.

The next issue to be addressed is whether the respondent knew the complainant was a person with a disability.  The complainant stated on the complaint form “I very clearly stated to the store person I had an exemption, he ignored me and walked away from me to point out the signs on the door”.  On the ES1 form the complainant stated, “I was just about finished when a staff member asked me to put the mask on I said I had my exemption he ignored that and continued on insisting I wear a mask…” and “He never once gave me the option to show him my exemption.” In her oral testimony the complainant stated that Mr Harberg approached her to put on a mask, she then told him she had an exemption.  She stated that Mr Harberg did not engage with her which she felt was disrespectful. Under cross examination the complainant stated she did not show her exemption card because she didn’t have an opportunity.  The complainant also confirmed that she did produce her exemption card to the Gardai when they arrived, 50 minutes later. 

Mr Harberg in his evidence stated that he asked the complainant to use a mask and she had said she didn’t need one.  He stated that the complainant only told him she did not need to use a mask, she did not say she had an exemption.

It is clear there is a conflict between the complainant and Mr Harberg about what exactly was said on that day in the store.  What is not in doubt, as confirmed by the complainant’s own evidence, is that the complainant did not produce her exemption card until the Gardai arrived.  The complainant is a person with a disability that is not obvious.  I am satisfied that Mr Harberg did not know the complainant was a person with a disability and could not have know unless the complainant could verify that fact in some way. 

The complainant in her oral testimony stated she didn’t have the opportunity to produce her exemption card to Mr Harberg.  I find this not to be credible.  The complainant stated that Mr Harberg did not engage with her and walked away to go behind the till area where there was a screen.  I am satisfied that Mr Harberg did not prevent the complainant from taking her exemption card from her bag and showing it to him. 

There is a difference between the respondent having knowledge that the complainant was a person with a disability and a possible defence to a charge of being in breach of Government guidelines on the wearing of face masks in public.  I note the following comment on this issue in A Customer v A Retail Shop ADJ-00033208:

“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 for them.”

The complainant in her oral testimony stated several times that Mr Harberg did not engage with her.  The Government in August 2020 made regulations about face coverings in certain premises and businesses. S.I. 296/2020 was introduced in the context of the Covid-19 pandemic.  The context of the regulations is set out as follows:

“having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19 …”

Regulation 4(1) of S.I. 296/2020 states:

“A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.”

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.”

I am satisfied, based on the evidence of the complainant and Mr Harberg, that he did engage with the complainant to inform her of the requirement to wear a face covering and that he showed her the signs in the store setting out the requirement.

The respondent had a responsibility, through the responsible person on duty, to engage with people to inform them of the requirements about face coverings.  Havin regard to the “immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19 …” I am satisfied it was reasonable to expect a customer in a store to engage with the responsible person to advise them of the reason they had an exemption from wearing a face covering.  It is not reasonable to simply say I am exempt and expect the responsible person in the store to accept that without verification.

Finding

In reaching my decision I have considered all the submissions, and oral and written evidence presented to me by the parties to this complaint.

I find the complainant is a person with a disability.  I am satisfied that on 22 September 2021 the complainant did state that she had an exemption from wearing a face mask, but she did not provide evidence to the respondent in support of that assertion.  The complainant had in her possession an exemption card but did not present this to the responsible person in the store on that day. Therefore, I am satisfied that the respondent, on the date in question, did not have knowledge that the complainant was a person with a disability who could have a reasonable excuse for not wearing a face covering.

In such circumstances I am satisfied that the complainant has failed to establish a prima facie case from which it may be presumed that prohibited conduct, as detailed in the Equal Status Act, has occurred.  Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on the grounds of disability or in respect of failure to provide reasonable accommodation for a disability.

CA-00048185-001

Complaint submitted under section 21 of the Equal Status Act, 2000.

I am satisfied that the complainant has failed to establish a prima facie case from which it may be presumed that prohibited conduct, as detailed in the Equal Status Act, has occurred.  Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on the grounds of disability or in respect of failure to provide reasonable accommodation for a disability.

I find this complaint is not well founded.

Disability

Discrimination

Face Covering

Covid-19