Complainant

Respondent

Anonymised Parties

A Minor

A Convenience Store

Representatives

Complainant’s Father

The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048783-001

23/02/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complaint Form was received by the Workplace Relations Commission on 23 February 2022.

There were a number of submissions sent in by the Complainant which were shared with the Respondent. Similarly, the Respondent furnished a submission on 20 July 2023 which was shared with the Complainant as well as additional time being given at the hearing for the Complainant’s father to review the submission.

The Store Manager, the Concession Manager within the Respondent store, the Director of Retail Sales and Operations all gave evidence and swore an affirmation. Additional time was given to allow the Concession Manager time to log in and be heard.

The Respondent was also given time to listen to the voice recording of the conversation between the Complainant’s Father and the Concession Manager in advance of it being presented to the hearing as well as additional time to take instructions on both the recording and the letter of exemption.

The Respondent noted the name of the Respondent was incorrect and volunteered the correct company name and registered business address at the outset of the hearing.

The Respondent raised a preliminary objection to jurisdiction which I will in the course of the decision.

Minor Complainant

The parties were advised from the outset that this case would be held in private, and the decision anonymise as it involved a minor.  The Complainant was 13 years old on 3 January 2022 the date on which he claims he was discriminated against by the Respondent and now was 14 years of age. On that basis he did not swear an oath or affirmation but did get an account of his evidence at the outset of the hearing to ensure there was no delay in hearing his version of events. During his evidence, all other parties turned off their camera. The Complainant’s Father accompanied the Complainant and gave evidence separately after swearing an affirmation. The Respondent’s representative was asked to be mindful of the language and tone of cross -examination of the Complainant.

Parties were given an opportunity to present their evidence and cross examine. The Complainant did avail of the opportunity to cross examine. The Respondent did not cross examine the Complainant or his father.

There were numerous attempts to rely on hearsay evidence by the parties and this has not been taken into consideration in arriving at this decision.

Preliminary Objection

It was the Complainant’sfather’s evidence that he raised a complaint with the Concession Manager on the 3 January 2022 and following this conversation wrote two letters to the Store and the Concession Store detailing his son’s complaint. Both letters were dated 12 January 2022 and sent by registered post.

It was his evidence that between the 3 January 2022 and the date he wrote the letter, the Complainant’s Father gave evidence that he took the time to research the potential claim and what steps to take.

He stated no response was received from the Respondent.

Substantive Claim

The Complainant explained he went to the Respondent shop with his 3 friends to purchase a drink. The Concession Manager came over to them and started shouting to get out of the shop. He remind in the shop, told her he had an exemption letter and presented his phone to the Concession Manager where he held a copy of his exemption letter. The Concession refused to look at it and he left.

No questions were put to the Complainant by the Respondent.

The Complainant’s father gave evidence of receiving a phone call from his son after the incident. He explained that his son was very upset at the way he was treated.  The Father returned to the store to speak with the Concession Manager approximately 1 hour later at 5pm. When he raised the incident with the Concession Manager, she replied, “yeah I threw him out”. The Father went on to explain that his son had an exception letter, but the Concession Manager replied that she “did not care”. He advised her that he was going to take this further as it was “medical discrimination”. Later in his evidence , he accepted that the Concession Manager did offer to apologies to the Complainant when asked by his Father.

In response to the Respondent’s submission, the Father stated the Respondent did  accept that his son presented the phone to which he added he was doing this to show the Concession Manager his exemption letter.

The Father described his son’s medical condition and read out the letter of exemption from his GP dated 27 August 2021 which details the disability and specifically notes he is exempt from wearing a mask or visor. The letter also seeks accommodation of his son from the reader.

The Farther disputed that any offer of a complimentary meal was offered by the Respondent.

No questions were put to the Father by the Respondent.

Preliminary Objection

It was the Respondent’s submission that the Workplace Relations Commission did not have jurisdiction to hear this claim where the notification requirement did not comply with Section 21 (2) of the Equal Status Act 2000 (as amended) and in particular, Section 21 (2) (ii) . No ES1 Form was received from the Complainant. The Respondent relied on the recent decision of David Devoy v O.T Investments Unlimited Company T/A O'Tooles Supervalu, ADJ-00037956.

The Director of Retail Sales and Operations gave evidence that she did receive the letters signed by the Complainant’s father and interpreted them as a customer complaint. She investigated the matter with the Store Manager who advised her the Concession Manager had apologised and offered a complimentary meal to the Complainant. On this basis she felt the matter was dealt with, adding it was not standard practice to respond to a written letter.

Asked by the Complainant’s father why a follow up written complaint was sent after speaking with the Concession Manager, if the matter had been “closed out”? It was the Director’s evidence that the letters ”may have been sent out of frustration and that’s why you wrote them” and it was possibly sent in “the heat of the moment” as he had been in the store since.

Upon inquiry, the Director was asked if she received the letters to which she confirmed, she did. She further confirmed that she saw the reference to “medical discrimination” in the letter. When asked about the Respondent’s policy for Mask Wearing in the store, she explained she was not aware of the “ins and outs” of it but the Respondent was adhering to public health guidelines. The Director was then asked if she was aware there was an exception within the Covid19 Regulations around mask wearing at the time and she confirmed she did. Asked why the Complainant’s letter was dealt differently she said it was the attitude and he did not explain his situation in a respectful manner.

Substantive Complaint

The Concession Manager gave evidence that four boys entered the shop without masks nor were they social distancing. At the time it was just after Christmas when Covid19 numbers had spiked. She told the boys that they had to wear a mask and three left the shop. The Complainant stayed in the store and was waving his phone at her. She explained she did not feel comfortable taking the phone from him due to Covid19 virus. She described him giving her “cheek” and in response she told him he had to wear a mask.

Later that evening the Complainant’s son did speak to her in the shop and told her his son was exempt from wearing a mask and he had been upset and embarrassed. She agreed to apologies to the Complainant and offered a complimentary meal. She explained that the Covid19 numbers were high, and it was frightening.

Upon cross examination by the Father, the Concession Manager it was put to her that she did not offer a complimentary meal, which she denied. She said the incident was a year and half ago and she remembered what she remembered.

The Father put the voice recording to the Concession Manager and noted the lack of offer of complimentary meal. The Concession Manager stated the incident happened over one and half year ago and did not recall the full conversation but did remember offering the complimentary meal which she said may not have been captured on the recording. She did note that she offered an apology.

Upon inquiry the Concession Manager was asked why she did not look at the Complainant’s phone. It was her evidence that the Complainant did hold up his phone to her, he told her he had an exemption, but she did not feel comfortable taking the phone from him. Asked if she  asked the Complainant to open the letter for her on the phone so she could read it, she replied she did not. She added that most customers had a physical letter. 

The Store Manager gave evidence that he investigated the complaint once it was brought to his attention by the Director of Retail Sales and Operations with the Concession Manager. Upon inquiry he was asked about the Store Policy at the time and whether there was a requirement to present a physical letter. It was his evidence that the guidelines changed week to week and the store followed the policies set down by the store operator. It was flagged to the Respondent that no policy had been presented in evidence.  

In summing up the Respondent was asked about its submission made at the outset of the hearing on the ground of disability. It was the Respondent’s case that the Complainant did not make clear what disability he had to the Concession Manager on the day and noted the onus was on the Complainant to do so.

As regards the lack of comparator, it was submitted by the Respondent that the Complainant failed to identify one. It was submitted that he had been treated “exactly the same as the other people he was with and all were told to leave” the store. The Respondent was asked if she disputed his exemption letter and confirmed it did not.

The Respondent closed by outlining the Covid19 figures at the time and management were concerned about staff and customers.

The Respondent relied on two cases, ADJ-0036360 Tomasz Pysz V Department of Health where the Respondent was not made aware of the disabilityand ADJ-00032915 Mary Tierney v Sports Direct Limited where the Complainant did not provide the information to the Store Manager at the time.

Preliminary Objection

The Respondent submitted that this claim is not properly before the Workplace Relations Commission on the basis the Complainant failed to comply with Section 21 (2) of the Equal Status Act 2000 (as amended) in notifying the Respondent in advance of the filing his complaint with the Workplace Relations Commission.

Section 21 sets out the steps when raising a complaint of discrimination.

(2) Before seeking redress under this section, the complainant—

(a) 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—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.”

It was accepted that the Complainant did write to the Respondent by registered letters dated 12 January 2022. There was no ES.1 Form. The Equality Tribunal were clear in Mongans v Clare County Council, DECS2008-39 that the ES.1 Form is not mandatory, and an ordinary letter will suffice.

Upon inquiry, the Respondent was given an opportunity to respond to the amendment to the Act which allows for further consideration of the notification of equal status complaints with Section 21. (3) (a) (2) of the Equal Status Act 2000 (as amended by the Civil Law (Miscellaneous Provisions) Act 2008). The amendment provides:

“(3)  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

In response, it was submitted by the Respondent that they viewed the letters as a “customer complaint”.

The recent decision in Lane v  Advant Card DAC, ADJ-00033574 sets out in detail the requirement for notification of an equal status complaint. It further detailed a discussion round the test set out in Section 21 (3) (a) (2).

The Equality Tribunal in O’Brien and McCarthy v Ruairí’s Bar, Tralee, DEC-S2007-039 explained the purpose of the notification requirement:

“The purpose of this notification is twofold. Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.”

In this instance it was the Director of Retail Sales and Operations direct evidence that she received the letters, that she was aware there was a claim of “medical” discrimination. Both letters are detailed handwritten accounts of the Complainant’s claim on 3 January 2022 which  extended to three A4 pages. Having read the letters, there is a clear account of what happened on 3 January 2022 of both the interaction with the Complainant and the Concession Manager and subsequent complaint by the Complainant’s father on the same afternoon. There is, inter alia, express reference to the Complainant’s exemption to wearing a mask, the exemption letter which he kept on his phone and the Complainant being “impeded from accessing goods in your store”. Consequently, I find it was reasonable the Respondent , upon reading the letter, should have been altered to the fact this was a discrimination complaint. It is further note that this is a company with the operational supports of inhouse HR together with a Director of Operations. 

In relation to the second limb of the test set out in Section 21 (3) (b), the Respondent gave clear evidence that the matter was investigated by the Director with the Store Manager. Furthermore, the Director gave evidence that it was not the Respondent’s “standard practice”  to follow up with written complaints. It is of note, that the letters do call for a written response. Consequently, I find there was no prejudice suffered by the Respondent.

In relation to the decision of David Devoy v O.T Investments Unlimited Company T/A O'Tooles Supervalu, ADJ-00037956 relied upon by the Respondent is distinguishable on the grounds that there was no evidence  before the WRC of the actual written notification sent by the Complainant to the Respondent in advance of referring the matter to the WRC. However, in the complaint before me, the Director of Retail Sales and Operations, was expressly asked by me if he received and read the letters. She confirmed she did. The letters were submitted to the WRC by the Complainant on the same day as the original complaint form on 23 February 2022.

In conclusion, I am satisfied that the Respondent was notified of the Complainant’s complaint pursuant to Section 21 (3) (b) and the matter is properly before the Workplace Relations Commission.

Recording

The Adjudication Officer in Enners v McCarty, ADJ-00021403, relying on the Equality Tribunal case of Laurentiu Engen Iacob –v- The Central Hotel, DEC-E2010-147 allowed the admission of an audio recording where there was “no dispute as to who the parties recorded were and the content of the recording has true evidential value.”

The Respondent objected to the recording for two reasons; firstly, the Concession Manager did not consent to the making of the recording and secondly, it was not clear to the Respondent if the recording was the full conversation. A further objection was later made that it was not furnished in advance of the hearing.  

The parties were given time to listen to the recording twice in advance of it being presented in evidence.

The Complainant’s Father was specifically instructed to play the entire recording which included him walking into and out of the shop. The Father did describe the video as muffled in places.

After the parties had listen to the recording and the Respondent had taken the time offered to take updated instruction, it was decided that the evidence would proceed and if the Father still felt was necessary to listen to the recording it would be considered. The parties were also advised that , albeit it was not the preferred option, the hearing could be adjourned to allow for the recording to be exchanged and presented in a manner which was more audible.

However, this proved unnecessary as the Respondent proceed to rely on the conversation in its own submission where the Concession Manager apologised to the Father. I again asked if the Respondent where it was now relying on the recording, was there any objection to playing it. The Respondent then confirmed it had no problem playing recording.   

On that basis, the recording was played during the hearing.

Substantive Case

Section 3 of the Equal Status Act 2000 defines discrimination as:

3.— (1) 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,

Or                                                

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds

“(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”)”

Special Treatment is defined in Section 4: -

“4.— (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) 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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”

Burden of Proof

The burden of proof is set out in Section 38A of the Acts which provides:

“(1) Where in any proceeding facts are established by or on behalf of a person from which it may be resumed 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.”

It is necessary to consider SI 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 was introduced to assist in the prevention of the spread of Covid-19 in the interest of public health.

Regulation 4 of S.I. 296/2020 which requires a “responsible person” that being the person in charge to:-

“(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.

Under Regulation 5 (a) of S.I. 296/2020 provides for specific exclusions: -

“5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if -

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

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress”

There is very little in dispute between the parties in this case. Both parties agree the Complainant was not wearing a mask in the store, he told the Concession Manager he had an exemption and sought to present the exemption letter on his phone. This offer was refused by the Concession Manager. No questions were put to the Complainant or his father around the disability or the letter from the GP dated 27 August 2021 and is therefore, deemed to be accepted by the Respondent. There was no dispute that the Complainant was told to leave the store and prevented from completing his intended purchase of a drink.

There was much made by the Respondent that the Complainant failed to identity a comparator. It was submitted that the three friends who accompanied the Complainant into the store did not wear masks and they were told to leave the store. This is not a comparator that would satisfy Section 3 (1) (a) of the Act. The simple fact here is the Complainant was exemption from wearing a mask or any face covering as a result of his disability and held a letter written and signed by a medical doctor. This exemption was expressly provided for in Regulation 5 (a) of S.I. 296/2020. This letter was offered to the Respondent but it chose not to take the time to read it.

It is entirely understandable and clearly evident from the voice recording that retail staff were under significant pressure at a time when Covid19 numbers were high, in terms of their own health, their colleagues and customers. It is very obvious from the recording that the Concession Manager was fearful of the Covid19 virus. Fearful of its impact on the other staff who were out of work at that point in time and the associated pressures. It is also noted the Concession Manager did offer an apology to the Complainant.

However, the decision not to listen to the Complainant and allow him time to explain his exemption and/or seek reasonable clarifications fell short of what was required a reasonable person under the Regulations, the Respondent in this case. It was put to the Respondent whether the Complainant was treated differently because he of his age but the Store Manager made assurances this was not the case.

In this particular case, it does appear that the failure of the Respondent to acknowledge the two handwritten letters sent by registered post by the Complainant’s Father only added to the upset caused.

In light of these facts, I find the Complainant has discharged the burden of proof and established a prima facia case of discrimination that he was refused service at the Respondent’s store as a result of his disability and he was not reasonably accommodated as requested in the letter of exemption from his General Practitioner.

I find that the Complainant was discriminated against on the grounds of his disability. I award him compensation in the sum of €4,000 based on his treatment by the Respondent as a minor with a disability.

Equal Status- Discrimination – Covid19 – Mask- Minor