Complainant

Respondent

Parties

Marcin Nowak

Moriarty’s Food Markets Ltd T/A Moriarty’s Supervalu Skerries

Representatives

Barry Crushell, Crushell & Co Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042643-001

23/02/2021

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

CA-00042643-002

23/02/2021

The complainant was certified as not being able to wear a face covering because of claustrophobia. He asserts that he was discriminated against on grounds of disability in not being allowed attend work and also not being able to attend the respondent supermarket as a customer. The respondent denies the complaints of discrimination.

In submissions to the hearing, the complainant outlined that he has a disability and was not provided reasonable accommodation in respect of that disability. He suffered discrimination as both an employee and as a service user. The respondent failed to provide reasonable accommodation and failed to provide a service when he attended the store with his three-year old child.

The complainant outlined that there were people who had refused to wear a mask during the restrictions, and this has led to prejudice against people who could not wear a mask. The complainant outlined that he suffered from claustrophobia, and this is a psychological illness. This manifested itself when he was in confined spaces and included the wearing of a mask. He outlined that the respondent had implemented the standard protocols, and this included a self-declaration of a disability. The complainant had made a declaration that he was not able to wear a mask.

The complainant submitted that the respondent’s primary concern was not his safety or that of his colleagues, but they had treated this as a public relations issue. The respondent had informed the complainant that colleagues and customers had raised his not wearing a mask. He was asked to produce a medical certificate. He presented the certificate given to him by his doctor, who was based in Poland. The respondent then referred him to occupational health who also certified that he could not wear a mask.

The respondent, however, informed the complainant that he could not work if he could not wear a mask. He was also refused the service when he called to the supermarket to buy nappies, even though the respondent was aware of his medical condition.

The complainant said that this was not a visible disability. The respondent had initially said that a medical cert would do, but he was not facilitated in returning to work or to avail of a service. It was submitted that the respondent stance was profit driven. There were alternative roles that the complainant could have done. The complainant had been willing to be flexible and there were roles he could work without wearing a mask.

It was submitted that the respondent was focussed on public relations. It was submitted that there was an obvious distaste where an individual was not provided with the opportunity to work or with a service on any other ground than disability. It should cause the same distaste where the complainant suffered the same discrimination on grounds of his disability in seeking to work and to access a service. The complainant had been medically certified and had taken all the steps required of him. He was not allowed work and was also later discriminated as a customer.

The complainant outlined that he last worked in the middle of November 2020 and was paid up to mid December 2020. He outlined that the respondent was aware of his disability and because of the correspondence exchanged between them, there was no need for additional notification under the Equal Status Act. He referred to the correspondence that post-dated the refusal of service.

Complainant evidence

After being sworn, the complainant said that he commenced employment with the respondent in April 2018. He settled deliveries in the morning and then packed shelves. He started work at 7 or 8 in the morning. He had returned to work in 2020 and tried to wear a mask but could not wear one properly. The HSE guidelines provided for an exemption. He felt stressed wearing a mask and would panic and shake. He said that no colleagues complained to him about not wearing the mask properly nor did any customers. He was shocked when the respondent said that he needed to wear a mask.

The complainant outlined that he signed the self-declaration form and did not want to give any details to the respondent for confidentiality reasons. He was asked to get a medical certificate and was told that he would get an accommodation when he provided a cert. The respondent had said that they would only accept a cert.

The complainant said that he went to his GP in Skerries, who informed him that he should see a specialist. He arranged to see a specialist in Poland and did so online. He did not make an application to the Disability Tribunal in Poland. He would have had to wait two months to see an Irish specialist.

The complainant said that he attended work the next day and was told that he had to leave if he was not going to wear a mask. He was given two options and he chose to take two weeks of annual leave. He was paid for a few more weeks after that. He attended the occupational health assessment on the 7th December 2020. The doctor certified that the complainant could not wear a face mask, but he never received a copy of the report. The respondent emailed him to say that the complainant could not return to work and was informed that there was no reasonable accommodation. He said that he could have worked anywhere in the supermarket, for example on the butcher or deli counters, where staff worked behind a screen. About 30 people worked in the supermarket and there was also a store man role. He could have also done deliveries to the homes of customers.

In respect of the 26th November 2020, the complainant said that he attended the respondent premises mainly to get nappies. He was in the supermarket when the duty manager approached him to say that he needed to wear a mask. The complainant replied that he had a certificate and that he had given this to management. The duty manager said that it was the same rules for employees and customers. The duty manager told the complainant to leave the supermarket and he put down his basket and left. His son asked the complainant why they had to leave the supermarket.

The complainant said that he had not wanted to go back to the supermarket because they had discriminated against him. The complainant was placed on sick leave. The respondent had not mentioned any alternative roles and they stated that they had no accommodation to offer him.

In cross-examination, the complainant accepted that the respondent was obliged to protect colleagues and customers. He had informed the respondent that the HSE guidance provided for an exemption, and he was exempt. He had been able to shop elsewhere without wearing a mask. Colleagues often did various roles and there were always new butcher and deli staff. The complainant had told the respondent that he could do any role in the meeting of the 27th November, but they did not find any accommodation. He had been waiting for the respondent to come back with examples.

Closing by the complainant

In closing, it was submitted that all along the complainant had been informed that if he produced a cert, he could attend work. However, when he produced the cert, the story changed. The focus was not on providing a safe place of work and as soon as it became about the bottom line, the respondent excluded the complainant. There had been no change in the public health guidance, and this was that people could be exempt. The respondent had not provided evidence to justify this dramatic change. The HSE had said that people who were exempt should be facilitated. This was a balancing exercise, but the complainant could have been facilitated in some role. The respondent had held that the complainant could not work. The incident of the 26th November 2020 took place four working days after he had supplied the cert and the complainant should not have been excluded. The respondent had taken a hard line and disregarded the exemptions provided for by the HSE. The respondent did not consider any alternative reasonable accommodation.

In submissions, the respondent outlined that a party was required to notify a respondent prior to making an Equal Status complaint and no such notification was provided here. The complainant returned to work in October 2020 and initially wore a mask. He then did not wear the mask properly and there were complaints from colleagues and customers. It was not possible to keep a safe distance in the supermarket. He was approached by the store manager about wearing a mask and he replied that he did not like wearing it and that he was exempt. The respondent did not dispute that the complainant could not wear a mask.

The respondent met the complainant on the 27th November 2020, and they only then had the note from Poland. The respondent wished to explore the complainant’s needs and also the need for a safe working environment. The respondent sought to find a solution, for example wearing a visor and the complainant did not really engage. The complainant did not identify any solution that could allow him work safely. The complainant was referred to an occupational health assessment. The respondent had to address the health and safety of the complainant, colleagues and customers.

The respondent outlined that at this time, there was no vaccine and lockdowns were still in place. The respondent supermarket was open and had to control numbers. It was submitted that notwithstanding the exemption in the SI, no one had an absolute right to attend work without a mask. The Directive refers to it being without prejudice to the health and safety provisions in national law. The respondent had a legal obligation to protect all employees. The emphasis in the Safety, Health and Welfare at Work Act was on measures that protect the collective as opposed to measures directed at individuals. It was submitted that the consequences of Covid-19 could be severe.

It was submitted that the respondent had to weigh up its obligations and apply a balancing act to protect the staff. There would have not been an issue if the complainant could have worked on his own. The issue was not wearing the mask but the nature of the work environment. The respondent sought to explore reasonable accommodation and did a risk assessment that concluded that he could not do any role in the store.

The respondent outlined that the complainant had not returned to work. They had engaged with the complainant in April 2022, but he has not since returned to work. It was submitted that it was reasonable to keep the complainant out because of the incidence rate of Covid-19 and the lack of a vaccine.

Evidence of Serena Nally, Group HR Manager

After swearing an oath, the HR Manager outlined that their focus was on keeping staff. The respondent implemented the public health advice regarding the use of masks and hand sanitisers. Screens were installed where they could and staff always wore face masks, even behind a screen as they were working alongside colleagues. All check out staff wore masks. The respondent did not have any clusters of Covid-19 following these steps. Staff were scared and while they wanted to work, they had to go home to people who were working from home.

The HR Manager outlined that the complainant’s medical certificate from the Polish specialist came in on the Sunday and the complainant attended work the following morning at 7am. She had to translate the certificate as there were some details in Polish. She organised to meet the complainant. It had been her and the Operations Director who did most of the talking ini the meeting. They had sought to understand the complainant’s situation and he said that he did not want to talk about it. They asked what job could the complainant do in the store, and he said that it was for the respondent to come up with something. The HR Manager said that everyone in the store was wearing a mask, even the store man, as it was so busy. The complainant had said that he would feel safe working anywhere in the store and that he had a different view to her on masks. The HR said that she was disappointed that the complainant would not really engage at the meeting. 

The HR Manager said that the complainant had not replied to the letter of the 14th December, in particular to contradict the reference in the letter to all staff wearing face coverings. The medical information was that the complainant should not work if there was no role available where he could not wear a mask. Staff were wearing face masks everywhere, including the two office staff when they were in company. The delivery drivers wore masks when in the store and when in pairs, as well as when they were at customers’ doors. The HR Manager said that one staff member had raised concerns about the complainant not wearing a mask and this staff member was looking after an elderly parent at home.

In cross examination, the HR Manager outlined that the complainant had referred to his medical condition but would not tell the respondent what it was. The respondent acknowledged the complainant’s self-declaration and the HSE were then recommending that staff presented medical certificates. The HR Manager said that she accepted that the complainant has claustrophobia and the respondent had accepted the medical certificate. The Polish certificate only referred to the complainant having a phobia. The respondent wanted to know the reason that he could not wear a mask. The complainant was the only staff member claiming to have an exemption.

The HR Manager said that she then rang the HSE, and their stance was that the respondent should look for further information. She said that the guidance from the HSE was not always clear information and that this was no one’s fault as so much was changing. Colleagues were provided with alternatives such as visors or snoods. All jobs then required the wearing of a face covering. All roles were customer facing except for the two office staff. The respondent looked at all the roles and they all required face masks.

The HR Manager said that there were 6 or 7 staff working in the deli. She said that the complainant could not have worked safely in the store without a face mask. Everyone felt safer with a face mask, including the ‘stores in’ colleague and the delivery drivers. The delivery drivers often dropped shopping into the clients’ homes including the elderly. Their home deliveries had grown exponentially because of the pandemic. She confirmed that the complainant had said he was happy to work anywhere in the store and that he had a different view about face masks.

The HR Manager said that she had spoken to the occupational health doctor after she had provided the certificate and it was the doctor who said that the complainant should be put on sick leave if there was no role for him. The HR Manager outlined that they needed the complainant to work as he was a very experienced manager and could do orders. The respondent had sought to get the complainant back in 2022 and his job was there. She said that the respondent put people and staff first and she had mentioned customers in the letter to show the importance of the issues they faced.

The HR Manager outlined that she had been the liaison point with the HSE and fielded queries on behalf of managers. Things had changed a lot between the 6th and 26th November 2020, so she had been in touch with the HSE a great deal. All decisions made by the respondent were based on HSE advice as they could say that this was the source of their information and that they would be consistent. The HR Manager and the occupational health doctor discussed the roles and the doctor agreed that none was suitable.

Evidence of James Moriarty, Operations Director

After being sworn, the Operations Director outlined that it was panic stations when the pandemic hit. They divided up the group business and he looked after this particular store. He travelled to the store every day and looked after the running of the store. Initially, everyone was wearing a mask including the complainant, but the Operations Director asked the complainant to wear it properly. The Operations Director said that this would keep everyone safe and that if the complainant could not wear one, he could not work.

The Operations Director said the respondent was following the public health advice and cases were then rising. They prioritised staff safety and all colleagues, including the butcher and deli staff, wore masks. The Operations Director said that the complainant did not initially refer to a medical reason and then supplied the certificate. He outlined that there was no area the complainant could work in without a mask. The complainant had disengaged from the meeting.

The Operations Director said that he had met the complainant on the 9th November 2020 when the complainant and his family attended the store as customers. The Operations Director told the complainant that he had to wear a mask and the complainant replied that he was exempt. The Operations Director asked the complainant to leave but that he could pay for what he had. The Operations Director said that he had looked at the CCTV of the incident of the 26th November.

In cross examination, the Operations Director said that while the complainant was initially told that he could attend work with a medical certificate, the position changed following the guidance around protecting customers and the worsening public health situation. The Operations Director said that he consulted with the Group HR Manager and looked at the public health advice. He acknowledged that the occupational health provider had stated that the complainant could not wear a mask. He said that the respondent reviewed all the areas in the store including the butcher, deli, stores and deliveries but they all required wearing a face mask.

It was put to the Operations Director that the Regulations allowed for exemptions; the Operations Director replied that the issue was the risk of exposing the virus to others. The Operations Director said that there must have been some change in the public health advice between the 6th and 26th November which led him to first say that the complainant could work if he had a certificate to then saying that he could not work even if he was certified. He said that this was a customer facing role and everyone was at risk. It was put to the Operations Director that the complainant had provided his self-declaration form and the two medical certificates, but he was escorted off the premises on the 26th November 2020; he replied that this was in the time the complainant’s position was under review and the complainant was still being paid. They had then required customers to have a medical cert if they were in the store and not wearing a mask. The complainant had supplied the first certificate on the Sunday evening, which they were then reviewing. This information may not have been relayed to the duty manager by the 26th November. The Operations Director outlined that the complainant had been out on sick leave in 2020 following a car collision and he was accommodated in respect of heavy lifting. The Operations Director had also helped the complainant when he found it difficult to meet accommodation costs. 

Closing by the respondent

In closing, the respondent submitted that the complainant had not notified it as required by the Equal Status Act. In respect of the Employment Equality complaint, the respondent outlined that it had engaged with the complainant, and it was not obliged to get him another role. The respondent had gone further than was required and had looked at every role. There were competing interests to weigh up and the emphasis in the Safety, Health and Welfare at Work Act was prioritising group rights, tieing the respondent’s hands. The respondent had no option available to it to facilitate the complainant.

The complainant is the fruit and vegetable chargehand in the respondent supermarket. He managed the fruit and vegetable area of the store and supervises two members of staff.

CA-00042643-001

This is an Employment Equality Act complaint of discrimination and the failure to provide reasonable accommodation on grounds of disability. The complainant last attended work on the 15th December 2020, when he was told that he could no longer attend work if he was not wearing a mask. The complainant outlined that he could not wear a mask because of claustrophobia, referring to medical certification.

Statutory background

Section 16 Employment Equality Act

Section 16(1) of the Employment Equality Act addresses the extent of the obligation of an employer to provide reasonable accommodation to an employee.

‘Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.’

Section 16(3) outlines the obligation to provide appropriate measures to an employee:

‘(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.’

Section 16(4) addresses what are appropriate measures.

‘In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.’

Both the European Union and Ireland have ratified the UN Convention on the Rights of Persons with Disabilities, which includes the requirement ‘to take all reasonable steps to ensure that reasonable accommodation is provided.’ [Article 5]

Interpretation of ‘reasonable accommodation’

Nano Nagle School v Daly

In Nano Nagle School v Daly [2019] IESC 63, the Supreme Court addressed the obligation to provide reasonable accommodation to an employee in the following terms:

‘Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.’ [paragraph 84, MacMenamin J.]

Cunningham v Irish Prison Service

In Cunningham v Irish Prison Service [2020] IEHC 282, Barr J. concluded as follows

‘It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgements of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act.’ [paragraph 63]

While addressing the partial exclusion in respect of emergency services, the Court held that there was no one-size-fits-all approach, and the nature of the obligation to provide reasonable accommodation depended on the circumstances. This could relate to the size of the organisation and the available roles within it.

HR Rail

On the 10th February 2022, the Court of Justice of the European Union handed down its judgment in the HR Rail case (C-485-20). The Court determined that, as a matter of EU law, reasonable accommodation required an employer to consider other roles than the role heretofore carried out by the employee.

HR Rail related to a railway worker who could no longer work on the railways as a heart condition led him to being fitted with a pacemaker, which was incompatible with the electromagnetic fields on the railways. While he was temporarily assigned a position in a warehouse, he was later dismissed on grounds of incapacity. The CJEU held that ‘reassignment to another job may constitute an appropriate measure’, albeit not to such an extent that it poses a ‘disproportionate burden’ on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill. As noted by the Advocate General in HR Rail, reasonable accommodation involves a fair balance between the needs of the person with a disability and those of the employer. The Advocate General emphasised that an accommodation requires practical measures to ensure that the employee remains in employment. What is striking in HR Rail is that the employee was already assigned to an alternative role that he could perform at the time he was dismissed.

Each case is determined according to its circumstances. HR Rail related to a large employer with a multiplicity of roles and vacancies available to it. The employee in HR Rail was already accommodated in an alternative position pending the completion of the capability process. It is undoubtedly the case that the CJEU in HR Rail placed a much greater emphasis on keeping the employee in employment as opposed to an individual role. Reasonable accommodation specifically requires the employer to consider other positions than the employee’s current position, albeit one the employee is capable of and in which there is a vacancy.

Pandemic-related legislation

Both parties referred to the emergency legislation introduced to address the Covid-19 pandemic, for example S.I. 296/2020 and the related public health advice. The complainant referred to the provision for ‘reasonable excuse’ for a person attending a designated premises, such as a store, without having to wear a mask. This includes a person who cannot wear a mask due to a disability. The respondent referred to the ongoing public health advice regarding face coverings as well as its general health and safety obligations.

It is worth bearing in mind that S.I. 296/2020 was 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 was an infectious disease which could be transmitted through the air. 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.’

Application to the facts of this case

In considering this case, I apply the expansive interpretation of ‘reasonable accommodation’ set out in Nano Nagle, Cunningham and HR Rail. It is true that the respondent initially asked the complainant to provide a medical certificate and when he did, indicated that it had no role to accommodate the complainant in. It is also true, however, that the respondent had to balance the needs of its staff and customers, in particular to do everything possible to foster public health. As set out in the impressive evidence of the HR Manager, the respondent fairly and comprehensively considered other roles for the complainant, but none were available. At this time, not wearing a face covering indoors increased the public health risk and therefore reasonable accommodation does not encompass an obligation on the employer to permit an employee work without a face covering. Being able to attend work in these circumstances without a face covering is not an ‘appropriate measure’ within the ambit of section 16 of the Employment Equality Act. There was, therefore, no contravention in the obligation on the respondent to provide reasonable accommodation.

CA-00042643-002

This is an Equal Status Act complaint of discrimination and the failure to provide reasonable accommodation on grounds of disability. This related to occasions, for example on the 26th November 2020, when he was refused a service in the respondent shop as he was not wearing a mask.

On the 23rd February 2021, the complainant’s solicitor wrote to the respondent regarding the non-receipt of services from the respondent, referencing the Equal Status Act. This refers to previous correspondence, including the respondent’s letter of the 9th December 2020. The complainant’s solicitor had previously written to the respondent regarding the complainant’s claustrophobia and referring to the Employment Equality Act.

Notification per the Equal Status Act

I find that the complainant has established reasonable cause to allow the extension to four months of the notification requirement in section 21. I find that the complainant sought to raise the totality of the issues with the respondent, with the understandable emphasis on his not being able to work. I also note that the respondent incurred no prejudice in not being served with notification at an earlier date. I note that notification is a requirement for Equal Status claims, as the very nature of those claims is that the parties have no prior relationship and are unlikely to have a relationship in the future. This contrasts with the circumstances in this case, where the parties have a longstanding relationship. I, therefore, direct that the respondent was notified within time per section 21(3)(a)(i) of the Equal Status Act.

Disability discrimination

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.’

Application of the law to the facts

This complaint relates to occasions including the 26th November 2020 when the complainant called to the respondent supermarket as a customer. He was accompanied by his child. He was approached by a manager who said that the complainant had to wear a face covering. The complainant did not complete his intended purchases.

I accept that the complainant fell within the exemption provided in S.I. 296/2020. This, however, does not entail that the respondent was obliged to allow the complainant to enter the store without a face covering. The respondent was obliged to reasonably accommodate the complainant and in the circumstances of a public health emergency (which the complainant does not dispute) it was reasonable of the respondent to require that a face covering be worn and in these circumstances reasonable accommodation did not mandate the respondent to allow the complainant enter the store without a face covering. Subsection 4 refers to the potential for harm and it must be borne in mind that the very nature of Covid-19 meant that there was a significant potential for harm. It is not disputed in this case that face coverings lessened the threat of transmission, thereby lowering the potential for harm. It follows that there was no contravention of the Equal Status Act.

CA-00042643-001

Pursuant to the Employment Equality Act, I decide that the complainant was not discriminated against on grounds of disability.

CA-00042643-002

Pursuant to the Equal Status Act, I decide that the complainant was not discriminated against on grounds of disability.

Covid-19 / face covering / disability / reasonable accommodation