Complainant

Respondent

Anonymised Parties

A Member of the Public

A Supermarket

Representatives

 Michelle Loughnane of 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-00043285-001

29/03/2021

The complainant is claiming discrimination under the Equal Status Acts on the grounds of disability when she was refused service in the respondent supermarket because she was not wearing a face mask.

The complainant submits that on 10 February 2021 at approximately 5.30pm she went to a supermarket. At the entrance door there was a sign which said “Coronavirus COVID-19 No Face Mask No Entry”. She says this sign was unlawful, discriminatory and non HSE approved. The complainant asserts she is medically exempt from wearing a face mask.

When she was in the checkout queue the store Manager approached her and told her she could not be in the store without a face mask on and that was store policy. The person on the cash desk refused to serve her. The complainant told the Manager and the person on the checkout she was exempt from wearing a mask and showed them the exemption. The person at the checkout refused to accept her exemption and again refused to serve her. Then a customer verbally abused her and said the Gards should be called. The person at the checkout agreed with the customer. The complainant left the store and submits she was discriminated against, harassed, humiliated, abused and treated as if she was a criminal.

The respondent rejects the complainant’s allegations of discrimination. They submit that on 10 February 2021 infection rates and deaths as a result of Covid-19 were rising. Most of the population had not been vaccinated and the country was in level 5 lockdown. The store operated in accordance with public health guidelines, which were implemented in order to prevent the spread of Covid-19.

During the pandemic the store accommodated customers who could not wear a mask by operating a click and collect service, as well as online and home delivery services. It also provided a free delivery service for such customers. In addition, if a customer came to the store without a face mask the store would provide the customer with a free face mask.

If a customer could not wear a face mask and/or was exempt from wearing a face mask the store offered to complete the grocery shopping for such a customer and brought it outside the store to the customer.

Given the prevailing conditions around Covid-19 the respondent relies on section 4 (4) of the Equal Status Acts which states that treating a person who has a disability differently in order to prevent harm does not constitute discrimination.

The complainant contends that the respondent refused to serve her and the interchange over the issue amounts to discrimination and harassment on the grounds of disability under the Equal Status Acts.

The complainant says she has a disability which gave her an exemption under S.I. 296 of 2020 not to wear a face mask and she should have been allowed to enter the supermarket and do her shopping without hindrance. When refused service she showed the manager and checkout operator her exemption but his was ignored.

The store says they were operating within the Covid-19 public health guidelines which were operating at the time, which was a level 5 lockdown. If the complainant had told them she could not wear a mask they would have done her shopping for her and given it to outside the store.

The respondent cited section 4 (4) of the Equal Status Acts, which states: “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.”

The complainant told the respondent she was not wearing a mask was because she had a disability. Because she was not wearing a mask they did treat her differently; they refused her service in the normal way. They did this because of public health guidelines which required people to wear face masks in stores, and many other locations at that time. These guidelines were issued by the Government to reduce the spread of the Covid-19 virus. Therefore, anyone not wearing a face mask was considered more likely to be a risk of spreading the virus. I conclude the store behaved reasonably by refusing service to the complainant, particularly when they had alternatives available for anyone, including the complainant, unable to wear a face mask but wanted to obtain shopping from them.

I find the respondent can avail of the defence for different treatment allowed under section 4 (4) and the complainant is unable to establish a prime facie case of discrimination or harassment under the Equal Status Acts.

For the reasons given above I find the respondent can avail of the defence for different treatment of someone with a disability allowed under section 4 (4) and the complainant is unable to establish a prime facie case of discrimination or harassment under the Equal Status Acts.

Equal Status Acts – section 4 (4) defence