Complainant

Respondent

Anonymised Parties

A customer

An off-licence.

Representatives

 self

 Company management

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048722-001

20/02/2022

The Complainant was a customer at the Respondent’s off-licence.

This complaint was received by the Workplace Relations Commission on 20th February 2022.

Due to the Complainant having a disability I agreed to anonymise the parties.

Introduction.

The Complainant entered the premises of the Respondent Off-Licence store on 30th of December 2021.

The Complainant contends that he was subjected to discrimination because he was not wearing a face covering. The Complainant sought advice in relation to his position. He has been advised that the Respondent Off-Licence store acted in a manner contrary to the relevant law on face coverings, namely Paragraph 5 of S.I No 296 of 2020 Health Act 1947 (Section 31A Temporary Restrictions) (Covid 19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 as amended.

The Complainant wishes to place you on record that he suffered from a disability at that time as defined under Section 2(1) of the Equal Status Acts 2000 – 2015 (“Equal Status Acts”) and the Respondent’s actions constitute indirect disability discrimination.

Background.

After entering the store, one of the employees said: “You must put the mask on or else you are not allowed to buy any product from the store”.

The Complainant informed the staff member that he cannot wear a mask and will not put it on due to his disability. The staff member said one more time that the Complainant was not allowed to be in the store, and he must leave it immediately. The Complainant asked a few times for the product to be sold to him and said he would be reporting this incident. After this the staff member finally agreed to the sale only if the Complainant stood outside the store.

Outside the store, the Complainant tried to explain that he was exempt, and he could not wear the mask due to his physical illness. The Complainant contends that he was told that he could not be in the store if he could not put the mask on due to the store policy.

It was an internal law created by the shop manager contradictory to the relevant law on face coverings, namely Paragraph 5 of S.I No 296 of 2020 Health Act 1947 (Section 31A Temporary Restrictions) (Covid 19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 as amended. The Complainant has sent the exact date and time of the incident in the ES1 form to the Respondent, and he is sure that the manager of the store could precisely check the CCTV records in relation to the issue.

The Complainant contends that such behaviour was humiliating and offensive to him as a person, a typical man who needs to buy goods. He has been discriminated against due to his disability. This behaviour of the staff member not only made him feel like second class citizen who has no rights in this country to be treated equally with Irish natives. The Complainant contends that he has seen many Irish people, not wearing masks, being served in the shop without issue.

It also had an impact on his psyche as this caused his fear of shopping even after the lifting pandemic restrictions. Finally, the Complainant has started to feel the like different and worse type of human and he started to have anxiety about going out to the shops. The Complainant made a visit to his GP who has prescribed medication which he uses every time when he goes shopping.

Law on face coverings.

In accordance with Paragraph 5 of SI 296 of 2020 as amended, a person has a reasonable excuse for not wearing a face covering if they suffer from a physical and/or mental health disability rendering them unable to wear such a face covering.

Section 5 (1) of the Equal Status Acts stipulates that a person shall not discriminate in disposing of goods to the public generally or a section of the public. Under s3(2)(g) of the Equal Status Acts, an act of discrimination occurs if a person is treated less favourably on the grounds of their disability.

Clearly, disabled people have a right to equal access to services and your actions therefore constituted indirect disability discrimination. This is because a disabled person who is unable to wear a face covering has a right to access the shop in the same manner than a person without such a disability that is able to wear a face covering.

The Complainant wishes to place on record that he found the incident extremely distressing and humiliating. He also states that he is somewhat shocked and surprised that the Respondent Off-Licence store have imposed a policy contrary to the relevant law surrounding face coverings. It also constitutes indirect disability discrimination under the Equal Status Act 2000 as the very exemptions for people with disabilities demonstrates that a person with a disability is less likely to be able to wear a face covering than a person without such a disability.

The Complainant refers to the recitals to SI 296 of 2020. It is noted that the Minister of Health in the exercise of powers conferred on him made these Regulations:

(a)    Having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19 …….

It follows that the exemptions to wearing a face covering under Paragraph 5 of SI 296 of 2020 as extended were inserted as a proportionate response to the immediate, exceptional and manifest risk of Covid 19. The Government clearly deduced, on the basis of scientific evidence from NPHET, that such limited exemptions for disabled people would not enhance the risk of Covid 19 amongst the general population. Indeed, the Government would not have included such exemptions for disabled people if scientific evidence suggested that the customers or staff would be placed at increased risk of harm. It follows, therefore, that merchant’s discriminatory practices cannot objectively be justified on the unfounded basis that such actions protect staff and customers.

In accordance with Paragraph 4(4) of SI 296 of 2020 as extended, the duties of a ‘responsible person’ are limited to taking reasonable steps to engage with the person entering the premises to inform them of the requirement to wear a face covering and to promote compliance. There is no legal basis under this legislation to require a customer to provide evidence of a medical exemption. Indeed, such an action is defined as processing of sensitive heath data under the General Data Protection Regulation, 2018 (GDPR). Any processing of sensitive health data is prohibited under Article 9 of the GDPR.

The Respondent’s policies contravene public health guidance, the law surrounding face coverings and discriminate against people with disabilities. it is fundamental that the rule of law is upheld and that disabled people continue to have their right to dignity respected. It is therefore of seismic importance that disabled people who cannot wear face coverings continue to have equal access to all services.

The Complainant finally states (in his own words)

“Why? Why in 21st century, in the middle of the European Union the merchant in Ireland treats me in that way? Who gave the seller rights to inflict psychological harm to the buyer? I had a reasonable excuse which amounts to a disability within section 2 of the Equal status acts and that I was treated less favourably than another person in a comparable situation on the disability ground.

What would the merchant do if I had a wheelchair? Would they make me wait outside as well”?

The Respondent operates an off-licence.

During the Covid pandemic three members of the Respondent’s staff were missing from work due to Covid.

The Respondent’s premises are small and would be too small to observe a two-metre distancing rule.

All customers entering the premises were required to wear face coverings.

Equality law (both the Employment Equality Act 1998 and the Equal Status Act 2000) are based on comparisons; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

It is for the person bringing a claim to select their comparator. However, the Adjudication Officer will consider if the selected comparator advances the claim being made.

It should be noted that in the instant complaint the Complainant has identified no comparator.

I would consider that a comparator in the instant case would be any other customer who does not have the protected characteristic similar to the Complainant.

The wearing of a face covering was mandatory for all customers.

It should also be noted that the Complainant, once he left the store, was provided with the products he wished to purchase.

I do not believe the Complainant was subjected to discrimination and on this basis, I find that the complaint as presented is not well founded and that is my decision.

I do not believe the Complainant was subjected to discrimination and on this basis, I find that the complaint as presented is not well founded and that is my decision.

Equal Status Act, 2000.