Complainant

Respondent

Parties

Thomas  Conway

C&c Retail Limited 19-20 Spar Dame Street

Complainant

Respondent

Anonymised Parties

Representatives

 In person.

Mr. O’Mahony BL instructed by  HG Carpendale Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048717-001

20/02/2022

The Respondent is a city center convenience store. The Complainant is a member of the public.

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

The Complainant contends that he was refused service on two separate occasions in which he entered the Respondent retail store to purchase product.  The dates in question are the 17th and 18th September 2021. The Complainant feels these refusals were conducted in a very aggressive and hostile manner.

The Complainant states that these refusal were due to his not wearing a face mask during the Covid pandemic. The Complainant states that he was unable to wear a face covering due to the distress wearing such a face cover caused and that he was in compliance with observing the two metre rule.

The Respondent has stated that they were operating in a very difficult period and that they were making every effort to comply with all the rules and regulations introduced in an effort to combat the Covid – 19 pandemic and keep the business running at the same time.

Statutory Instrument S.I. No.296 of 2020 – Health Act 1947 (Section 31A – Temporary Restrictions) (COVID – 19) (face coverings in certain premises and businesses) Regulations 2020 clearly reads as follows:

Requirement to wear face covering

4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographic location without wearing a face covering.

     (2) Paragraph (1) shall not apply to  -

(a) a person under the age of 13 years

( b) a responsible person or a worker where –

         I.            There is a screen that separates the responsible person or worker from other persons, or

       II.            The responsible person or worker takes all reasonable steps to maintain a distance of at least two metres between himself or herself and other persons, or

(c ) a member of the Garda Siochana in the course of performing his or her duties.

     (3) paragraph (1) is a penal provision for the purposes of section 31A of the Health Act 1947 (No.   28 of 1947).

   (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.

Reasonable excuse.

(5) Without prejudice to the generality of what constitutes reasonable excuse for the purpose ofRegulation 4(1), a person has reasonable excuse if –

(a) the person cannot put on , wear or remove a face covering –

         I.            Because of physical or mental illness, impairment or disability, or

       II.            Without severe distress,

(b) the person needs to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise)

(c ) the person removes the face covering to provide emergency assistance or to provide care or assistance to a vulnerable person,

(d) the person removes the face covering to avoid harm or injury, or the risk of harm or injury,

(e) the person removes the face covering in order to, and only for the time required to, take medication,

(f) the person removes the face covering at the request of a responsible person, or of a worker, in order to enable him or her to ascertain the person’s age by reference to photographic identification for the purposes of the sale of goods or services in respect of which there is a minimum age requirement or where the responsible person, or worker, has lawful authority to verify the person’s identity, or

(g) the person removes the face covering at the request of a responsible person, or of a worker, in order to assist the responsible person or worker to provide him or her with healthcare or healthcare advice.

In the instant complaint the Complainant approached the Respondent retail premises and entered without wearing any face covering. He was approached initially by a security officer and then by the store manager. The Complainant contends that he was approached in a hostile and aggressive manner and was spoken to in relation to not wearing a face covering. The Complainant is also of the opinion that he was compliant in observing the two metre rule.

I would query the Complainant’s motive in returning to the shop on the second date (the day following the first incident).

The Complainant did not produce any documented evidence from a medical practitioner stating that the wearing of a face covering caused him distress.

In the instant case I am not satisfied that the Complainant observed the requirement to wear a face covering:

4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographic location without wearing a face covering.

The Complainant may have had a reasonable excuse however I believe he failed to outline this excuse to the Respondent.

In considering this matter I do not believe that the Complainant has presented a prima facie case that he was discriminated against and it is for this reason that I find the complaint is not well founded and therefore fails.

In considering this matter I do not believe that the Complainant has presented a prima facie case that he was discriminated against and it is for this reason that I find the complaint is not well founded and therefore fails.

Equal Status Act, 2000. Face coverings.