Complainant

Respondent

Parties

Liam  Neville

Parkside Kingscourt Limited

Representatives

  N/A

Michelle Loughnane Mullany Walsh Maxwells LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044551-001

10/06/2021

The Complainant stated that he was discriminated against on the grounds of disability when he was informed that he had to wear a face mask in the Respondent’s store on 3 February 2021.

The Complainant stated that on 3 February 2021 he went to the Respondent’s supermarket to purchase some groceries. He also asserted that he suffers with anxiety and asthma. As a result of these disabilities, he stated that he was exempt from wearing a mask in public buildings and was not required to provide a medical certificate to support the exemption.

On the day in question, he stated that he was approached by Mr Eugene O'Gorman, owner of the Respondent, who questioned why he was not wearing a mask. The Complainant explained that he was exempt from wearing a mask and then made a telephone call to a friend. When he completed his telephone call, he stated that Mr O'Gorman approached him again and stated that if he didn't leave the store, he would call the Gardaí. The Complainant further stated that Mr O’Gorman turned to a member of staff and instructed them not to serve him and asked him to leave the store again. He also alleged that he felt threatened at this point and made the decision to activate video recording on his mobile phone because he believed that having such a recording would protect him.

He asserted that he continued to move towards the checkout tills, was allowed to pay for his

groceries and then went to leave the store. The Complainant also stated that Mr O'Gorman came up behind him in the foyer area of the store and informed him that he was not allowed to record anyone because he was on private property. Despite having been contacted by the Gardai, he has had no further contact from the Respondent since the day of the incident.

The Respondent stated that the Complainant did not provide any evidence of his disability and has failed to establish a set of facts from which discrimination can be inferred. Specifically, it was asserted in evidence that he never made Mr O’Gorman aware that he could not wear a face mask because he had a disability. It was also highlighted in evidence that he was never refused service on 3 February 2021 and that he completed his grocery shopping. Mr O’Gorman also disputed that he told any staff member not to serve the Complainant and highlighted that if he had given such an instruction, the Complainant would not have been served.

The Respondent also stated that the Complainant behaved in a manner which greatly upset employees of the store on 3 February 2021 and highlighted that he was subsequently found guilty of criminal behaviour in respect of his actions before the courts.

The Law:

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service”:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;”

Analysis:

I find that the Complainant has complied with the notification requirements and it is therefore appropriate for me to adjudicate on this complaint.

The complaint is based on the allegation that the Complainant was discriminated against on the grounds of his alleged disability contrary to Section 3(1)(a) and 3(2)(g) of the Acts. 

Discrimination on the “disability” ground occurs where there is less favourable treatment of one person compared to another person because one person has a disability and the other either is not or is a person with a different disability.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (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 sections of the Equal Status Act which describe discrimination need to be outlined:

“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 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.

“discriminate” means to discriminate within the meaning of section 3(1) or 4(1)

Section 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) …

As outlined above Section 3(2) sets out the grounds relevant to this case which at (g) states:

“That one is a person with a disability and the other either is not or is a person with a different disability”.

The burden of proof is set out in Section 38A of the Act which provides that: “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”.

The first requirement in a case involving discrimination is that the Complainant who is claiming discrimination on the grounds of disability must be able to provide facts which will satisfy at least one of the criteria which define disability under the Act.  It is commonly understood that in many cases a disability will not be known or obvious.  A key provision is that in order to prosecute a claim of discrimination on the ground of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, the Complainant must be able to provide evidence to support that claim.  While this can often be a sensitive and difficult area for people who have a disability, this cannot overwrite the requirements of the legislation. 

In this case, the Complainant stated that he suffered from a disability, namely anxiety and asthma, and presented a medical certificate from his General Practitioner on the day of the hearing to confirm same.

In addition to being satisfied that the Complainant suffers from a disability however, I must also find that the Respondent was aware of the disability and treated the Complainant less favourably on the grounds of that disability and/or failed to provide him with reasonable accommodation for such a disability.   

In the instant case, I noted that it was not disputed between the parties that when the Complainant was confronted by the store owner, Eugene O’Gorman, on 3rd February 2021, the day of the alleged breach, and told that he should be wearing a mask, the Complainant did not inform him that he could not do so because he had a disability. In addition, given the nature of the Complainant’s disabilities, namely anxiety and asthma, I am of the view that the store owner could not have known of these without having been made aware of same by the Complainant. I also do not consider the assertion made by the Complainant that the store owner instructed staff not to serve him to be credible because the Complainant was served in the store on the day and was allowed to pay for his goods and continue his shopping.

In the absence of any evidence to suggest either that the owner of the store, or indeed any other staff member, was aware of his disability or that he was not denied a service, I find that the Complainant has failed to establish a prima facia case of discrimination on the grounds of disability. 

Given my finding above that the Complainant has failed to establish a prima facia case of discrimination on the grounds of disability, I find that the Respondent did not engage in prohibited conduct under the Act.