Complainant

Respondent

Anonymised Parties

A customer

A retail premises

Representatives

Self-represented

Harriet Meagher BL instructed by Ken Kennedy Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00041254-001

25/11/2020

The complainant asserts discrimination, harassment and victimisation in accessing the respondent shop on the 1st October 2020. The respondent denies the claim.

The complainant outlined on affirmation that the respondent breached section 4(1) and 5(1) of the Equal Status Act. She and her partner suffer from a disability and were exempt from wearing a face covering. Their children were also discriminated against by association with them. They cannot wear face coverings and were subject to indirect discrimination and victimisation. Her health condition leads her to choke, and she has mental health issues. This incident had a detrimental impact on them, and they had been subject to discrimination and humiliating treatment.

The complainant denied that there was any link between her and a high profile investigative journalist, who had called to the respondent shop on a later date. The complainant was not associated with the journalist later attending the respondent store. The complainant outlined that they were regular customers of the respondent. On the 1st October 2020, the complainant entered the store and was asked if she had a face mask. The complainant said that she was exempt and was asked whether she had proof of the exemption. She replied that she did not have her medical certificate and was told to get out. The complainant said that this was discrimination, but he was not listening. The person in the shop was aggressive and she was shaking.

The complainant left the store, and the store manager approached them, telling them to ‘f*** off’. He spoke about getting security. The Gardai did not attend. The complainant said that she was not anti-mask.

In cross-examination, it was put to the complainant that she had referred to not having to wear a mask but not to an exemption. It was put to the complainant that the respondent was not aware of the exemption. It was put to the complainant that there was no reference to her disability or her medical exemption in the email to the respondent of the 1st October 2020. The complainant said that she could not remember whether she had referred to a medical exemption in the conversation but had certainly referred to being exempt. She said that the store manager understood that she was referring to a medical exemption.

The store manager gave evidence under affirmation. He uploaded the CCTV of the incident. He had spoken to the complainant during the incident and asked if she would wear a face covering. He said that they were doing their job. The complainant and her partner became agitated, referring to his job as a ‘dead-end’ job. He asked the complainant to leave, and he called security. He denied using bad language to the complainant outside of the shop. The high profile investigative journalist called to the premises at a later date, accusing him of attempted murder. In cross-examination, the store manager denied that the complainant had said that she was exempt. It was put to the store manager that the complainant did not insult his job.

The regional manager gave evidence under affirmation. He referred to the emails circulated to explain the guidance around wearing face masks. It was respondent policy for staff to remind customers about wearing a face covering but not to challenge any customer. On affirmation, the operations manager gave evidence of receiving the complainant’s complaint and that access to the CCTV had expired.

In closing, the respondent outlined that the complainant was excluded because of the behaviour. The complainant had not shown that what happened had been because of her disability.

This is a complaint of discrimination, harassment and victimisation pursuant to the Equal Status Act. It is on grounds of disability. It relates to the 1st October 2020 when the complainants called to the respondent retail store. The complainants did not complete their intended transaction and they are regular customers of the respondent network of stores.

What happened and what was said is disputed. The CCTV is not available, despite the complainant seeking it. I examine the case first seeing if the complaint succeeds on taking the complainant’s evidence at its height. I accept that the complainant has a medical condition which resulted in her not being able to wear a face covering. I accept the complainant’s evidence that they were in no way associated with the later protest at the respondent shop and the attendance of the high profile investigative journalist.

Statutory background – section 31A Health Act

The parties referred to SI 296/2020, which came into force on the 10th August 2020. This required the wearing of face coverings in designated locations. SI 296/2020 also made provision for ‘reasonable excuse’ for a person attending a designated premises, such as a store, without having to wear a mask. This included a person who could not wear a mask due to a disability. It did not apply to those aged under 13.

It is worth bearing in mind that SI 296/2020 and the other Regulations were promulgated to address the ‘immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19’, as set out in section 31A of the Health Act 1947 (as inserted at the start of the pandemic).

It was not disputed in this case that Covid-19 is an infectious disease which is transmitted through the air. The complainant rejected the allegation that she was anti-mask. It was also not disputed that face coverings provide protection against the transmission of the disease.

The threat to public health was real and immediate. In O’Doherty and Waters v Minister for Health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms: ‘The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated.’

Statutory background – Equal Status Act

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms:

‘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.’

Section 11 addresses harassment, which is defined in subsection (5) as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.’

Application of the law to the facts

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonableness in this case must take account of the pandemic, as reflected in the language of section 31A and the words of Hogan J. This must take account of the fact that retail premises were open for members of the public to attend, including vulnerable groups. It must also take account of the fact that premises were only able to open because employees attended work, irrespective of the risk to them and their households.

Section 4(4) refers to ‘harm’ and it was not disputed in this case that Covid-19 could be a fatal disease that also caused long-term debilitating consequences, at least for some. It was also not disputed that face coverings reduced the transmission of the disease, and therefore, dissipated harm. It was reasonable for the respondent to ask and even insist that customers wear face coverings, and this mitigated harm. There was, therefore, no discrimination.

As noted, there was a conflict in evidence regarding what was said, including in the shopping centre concourse. Even taking the complainant’s evidence at its height, it did not constitute harassment ‘related to a discriminatory ground’, as required by section 11(5) of the Equal Status Act. I, therefore, find that there was no discriminatory harassment in contravention of the Act. There was no victimisation, i.e. an act of retaliation for the making of the complaint. There is insufficient evidence that a later cancelled order was related in any way to this matter.

CA-00041254-001

The respondent did not engage in prohibited conduct in respect of the complainant, and did not discriminate, harass or victimise the complainant.

Equal Status Act / face covering