Complainant

Respondent

Parties

Catherine Dunne

Adrian Corcoran

Representatives

None 

James O’Donnell BL instructed by Keaveny Walsh solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00043284-001

28/03/2021

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

CA-00043802-001

29/04/2021

The complaints are of discrimination and harassment on grounds of disability in accessing a service. The respondent is an owner of a retail premises, which contains a post office counter. The complaints relate to incidents of the 3rd and 7th December 2020 when the complainant sought a service at the post office counter within the retail premises.

After being affirmed, the complainant outlined that she was discriminated against in seeking to access a service at the respondent post office/retail premises. On the 3rd December 2020, the complainant attended the premises to send a registered letter and the respondent would not serve her as she was not wearing a mask. The complainant told the respondent that she was medically exempt, and the respondent insisted that she show her exemption. The respondent threatened to contact the Gardai. The complainant went to get her exemption and the respondent came out of the premises and shouted at her. The respondent handed her a newspaper cutting which referred to there being an €80 fine and the complainant said that this was intimidatory.

The complainant said that on the 7th December 2020, she returned to the post office to buy stamps and the respondent came out. He said that he would not serve her, and she replied that she was exempt from having to wear a mask and that she did not have to show him her exemption. She said that another customer was later served without wearing a mask.

The complainant said that the signs requiring the wearing of masks constituted harassment.

In cross-examination, it was put to the complainant that she had not provided the respondent with evidence of her disability; she replied that she had produced the letter of exemption and that this constituted ‘reasonable excuse’ per the Regulations. She said that she would put her life at risk if she wore a mask and was not obliged to wear a mask per the Regulations. She stated that she was not an anti-masker.

In closing, the complainant outlined that the respondent had misunderstood the legislation. A post office was not then covered by the Regulations, and she also had a reasonable excuse. The medical letter was sufficient. The respondent had not afforded her respect and calling the Gardai and the signs constituted harassment.

Adrian Corcoran, the respondent to these complaints, gave evidence under affirmation. He said that this had been a stressful and traumatic time. They were trying to adhere to the Regulations and to protect vulnerable customers. He said that catching Covid could be ‘lights out’ for vulnerable customers or their family members. The complainant entered the store, and he told her that she had to wear a mask. He dealt with the complainant on the 7th December and said that she had been trying to antagonise him. He outlined that he would have accommodated the complainant had she had a proper exemption, for example by dealing with her outside of the premises or when the shop was closed. In cross-examination, he outlined that he had been going by the Government guidelines and had not looked for the complainant’s medical records. He said that he had referred to contacting the Gardai because of the complainant’s behaviour.

June Corcoran gave evidence under affirmation. In respect of the 3rd December 2020, she outlined that this was a stressful time, and she had a good relationship with the elderly customers. She facilitated customers who could not wear a mask as best she could and who showed her proper documents. She said that the complainant’s document did not look official and not like the others she had seen. She said that she would have accommodated the complainant, had she asked.

In cross-examination, Ms Corcoran said that the letter presented by the complainant was not the letter she saw on the 3rd December 2020. She described the complainant as being bullying and aggressive in the incident. She said that she had pulled her mask down at the time of the incident.

These are complaints pursuant to the Equal Status Act. The complainant asserts that she was discriminated against and harassed on the 3rd and 7th December 2020. The respondent does not accept this to be the case. The parties gave evidence, as summarised above. Two videos were shown at the hearing and the parties commented on their contents.

Review of video footage

The parties played two sets of video footage. The respondent played footage of the 3rd December 2020 taken from a store camera. This depicts the complainant approaching the counter and holding a small, laminated version of the letter of exemption. Ms Corcoran approached the complainant and interacted with the complainant. The complainant said that Ms Corcoran was not wearing a mask. Ms Corcoran said that the complainant had been pointing her finger.

The video footage of the 7th December 2020 was taken by the complainant and depicts her approaching the post office counter. The respondent is heard refusing to serve the complainant, who refers to disability and states that the respondent is discriminating against her.

Statutory background – section 31A Health Act

The complainant outlined that the respondent was seeking to rely on SI 296/2020 to enforce its requirement for face coverings to be worn, when these Regulations did not apply to indoor premises that were, in part or in full, a post office. The complainant is correct that SI 296/2020 did not apply to post offices or any indoor premises that was, in part, a post office. This exclusion was set out in the definition of ‘relevant premises’ in the Regulations and the omission of post offices from the Schedule to the Regulations.

SI 296/2020 was initially to remain in operation until the 5th October 2020 and this was extended, first to the 9th November 2020 (SI 404/2020) and then to the 9th June 2021 (SI 511/2020). SI 20/2021 amended SI 296/2020 to remove ‘a post office, credit union or bank’ from the exclusion set out to the definition of ‘relevant premises’. Post offices were added to the list of ‘specified premises’ in the Schedule to the Regulations. This came into effect on the 26th January 2021, i.e. after the incidents described above.

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 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.’ A notice posted in a premises could, therefore, clearly constitute harassment.

The complainant asserts that signs posted in the store by the respondent constituted harassment. These were typical signs posted by retail stores during the pandemic and they stated: ‘no mask no entry protect all’ and ‘no mask no service please’ and ‘To help us protect our staff and each other In line with Government legislation it is now mandatory to wear face coverings while shopping our store’. The complainant also stated that phoning the Gardai constituted harassment.

Findings of fact

I am satisfied that the complainant has a disability within the ambit of the Equal Status Act. I find that the respiratory nature of this disability impeded the complainant’s ability to wear a face covering.

I am satisfied that the letter presented by the complainant was the same document presented in the course of the above incidents, albeit that this document was a laminated, reduced-size version of the letter submitted to the hearing. The letter cites ‘This is to certify that the above named is unable to wear a face mask or face covering for personal health reasons. She is therefore entitled to an exemption under the regulations. These exemptions are very important and are to be respected. There can be no discrimination against exempted persons. Personal health reasons are confidential between doctor and patient and can only be divulged with patients consent.’

I agree that the reference to an entitlement under law to an exemption and the statement that there could be no discrimination are not what one would expect to see in a medical letter. I do, however, accept that this was a document prepared by a named general practitioner and dated the 28th October 2020.

I note that the respondent premises featured in a facebook post of the 4th December 2020 in the complainant’s name, which stated ‘Blatant discrimination – [Respondent post office] NO MASK NO ENTRY NO SERVICE! … It is not law to wear a mask … it’s only a guideline which has no legal standing in law.’ The post includes photographs of the premises and the signs. It was Ms Corcoran’s evidence that this facebook account previously had a photograph of the complainant, but this image had been replaced by one of a lion by the time the facebook posts were downloaded. The complainant denied that she was associated with this facebook account.

Whoever the author of the facebook posts is, the points made in the 4th December 2020 post mirror the points made by the complainant at the hearing. Her claim is one of discrimination and she complains of the signs, both elements are mentioned in the post. I have agreed with the complainant that SI 296/2020 did not then require the wearing of face coverings in a post office or a premises that was in part used as a post office; this assertion is also made in the facebook post.

Irrespective of anyone’s views on masks, I have found that the complainant fell within the ambit of the Act. It is important to recall that the Workplace Relations Commission has no role in determining whether there was a breach of Regulations promulgated under section 31A of the Health Act, or whether a party had ‘reasonable cause’. The jurisdiction of the WRC extends to whether the complainant was discriminated against, including whether there was a failure to provide reasonable accommodation, or was she harassed.

Applications of the law to the facts

This matter relates to a local retail premises which includes the local post office. Some of the people involved have known each other for many years. It is, therefore, unfortunate that these incidents occurred, in particular the forcefulness of some of the interaction. It is important to note that this was during the societal upheaval wrought by the pandemic and the consequent public health restrictions.

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, including post offices, were open for members of the public to attend, including vulnerable groups. It must also take account that the 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 protected against the transmission of the disease, and therefore, dissipated harm.

I agree with the complainant that face coverings were not then legally required in post offices or retail premises which were in part post offices. This does not, however, mean that refusing to provide a service amounted to discrimination. I accept that the complainant had a disability within the ambit of the Act but given the danger and transmissibility of Covid-19, it was reasonable for the respondent to act as it did. Taking account of the reasonableness required of a service provider as set out in sections 4(1) and 4(4), and the peril posed by the pandemic, I conclude that the respondent acted reasonably and therefore did not discriminate against the complainant.

Some of the parties’ interactions were of an unfortunate forcefulness and blame can be attributed across the board in this regard. This prevented the parties agreeing an alternative arrangement for the provision of post office services. As the respondent acted reasonably, there was no discrimination and no prohibited conduct.

I find that the signs posted in the retail premises do not in any way violate the dignity of any person, including the complainant. They are public health messages and even if the retail premises was then outside the scope of the Regulations, they did not violate dignity as required by the definition of harassment. I describe the tenor of the interactions between the parties as unfortunate and the threat to call the Gardai or calling the Gardai do not amount to harassment. There was no prohibited conduct in this regard.

CA-00043284-001

I decide that the respondent did not engage in prohibited conduct in respect of the complainant.

CA-00043802-001

I decide that the respondent did not engage in prohibited conduct in respect of the complainant.

Equal Status Act / discrimination / harassment / Covid-19 / masks