Complainant

Respondent

Parties

Thomas  Conway

Quicktraining

Representatives

  Self-represented

John Madden B.L., instructed by  Julie Breen 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-00048718-001

20/02/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation.  Both witnesses were cross examined by the other party.

The complainant submitted that he was discriminated against on the basis of his religious belief and on the basis of a disability when he was not permitted to complete a ‘safe pass’ training course being run by the respondent.

The complainant submitted the respondent called the guards to remove him from a training course and this amounts to discrimination.

The complainant stated that he had a belief that he should not have to wear a mask and that he had a disability claustrophobia which meant that he could not wear a mask.  He stated that he was exempt from wearing a mask.  The complainant stated that he was not obliged to give any information from a medical practitioner.  He confirmed that he had not seen a doctor in more than 20 years.  He confirmed that he has no medical evidence of the existence of a disability.

The complainant stated that he attended a safe pass course and was asked where his mask was, he said that the participants should be 2m apart and he wouldn’t need one.  He confirmed that he was moved closer to an open door. He stated that the guards were only there to prevent a breach of the peace.

The complainant couldn’t recall receiving any emails prior to the course regarding the issue of Covid and didn’t remember filling in any forms.  He also confirmed that he never gets medical advice.  He stated that he was given reasonable accommodation but that it was removed. 

The complainant confirmed that following his ejection from the course, he received a full refund of the course fee.

The respondent provides training courses and denied discriminating against the complainant on the basis of a disability, religious belief or on the basis of any other grounds.

The respondent submitted that he called the Gardai due to safety concerns.

The respondent stated that he was as licensed course provider and that he was required to comply with the Covid regulations by his licensing body.  He stated that he began the course at 7.30am and that participants arrived until the 8am start.

The respondent stated that he started the induction element of the course which was followed by a short break.  This enabled him to have a chance to talk with the complainant.  When he raised the issue of mask wearing with complainant he immediately stood up and said he was medically exempt and that he didn’t have to tell the respondent anything further.  The respondent indicated that he would accept that, but he had to move the complainant closer to the door given the flow of air in the room.  He stated that the complainant moved under objection but that once moved he became very disruptive.  He also stated that another participant who did not have a mask, requested and was provided with one by the respondent.

The respondent stated that he had safety concerns for himself and health and safety concerns for the rest of the participants and so called the guards regarding the situation.

The respondent stated that following the intervention of the guards he had to return to teach the remainder of the course and left the complainant outside talking to the guards.  He stated that the complainant remained in his car for the remainder of the day and had to be asked to leave the premises by the owners at the end of the day.

The respondent stated that he never received any medical certification from the complainant that he was medically exempt from wearing a mask.

 This complaint is taken under Section 21 of the Equal Status Act, 2000 (as amended).  As noted by the respondent, the Act of 2000 contains the following provisions:

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,

Section 3(2)(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”),

Section 2 of the Act defines disability as follows

“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;

Section 2 of the Act, indicates that

“religious belief” includes religious background or outlook;

Having regard to the complainants’ submissions I note that the first element for the complaint to establish is the existence of a disability or religious belief under the Act and secondly is required to establish that he was treated less favourably than another person, who did not have a disability, or a religious belief, would be treated.

As regards the first element of the Act, the existence of a disability, the complainant stated that he had a disability but provided no supporting documentation or witness testimony in support of this contention.  He also confirmed that he did not provide evidence of such a disability to the respondent.  I am not satisfied that the complainant has established the existence of a disability.

Furthermore, that the complainant has not provided any evidence that his ‘belief’ that he shouldn’t have to wear a mask amounted to a religious belief.

Having regard to the evidence presented to me, I find that the complainant has established that he has a disability that would bring him within the definitions outlined in the Act nor that he has a belief that can be equated to religious belief such as to bring him within the protections of the Act.

As to the issue of less favourable treatment connected to a ground, the complainant has not established that the respondent’s safety concerns amount to less favourable treatment connected with a discriminatory ground.

Section 38A(1) of the Equal Status Act, 2000 outlines 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.” 

Having regard to Section 38A(1), I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred. 

Having regard to all the written and oral evidence presented in relation to this case, my decision is that the respondent did not engage in prohibited conduct.

Equal Status – disability – not established – religious belief – not established – no prohibited conduct.