ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032915

Parties:

	Complainant	Respondent
Parties	Mary Tierney	Sports Direct Limited

Representatives

Not represented

Claire Bruton BL

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00043586-001	14/04/2021

Date of Adjudication Hearing: 10/11/2022

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard and to present any evidence relevant to the complaint. The hearing was held in the Hearing Rooms of the Workplace Relations Commission in Carlow. The complainant was not represented, and the respondent was represented by Claire Bruton BL, instructed by Mason Hayes & Curran LLP. The complainant and Ms O’Moore, Human Resources Manager for the respondent gave evidence under oath.

Background:

The complaint is brought under the Equal Status Acts 2000-2018 and that the complainant was discriminated on grounds of disability and failure to provide reasonable accommodation. The complainant asserts that she was requested to wear a mask within the store and that she had no option but to leave the store and was not provided with reasonable accommodation.

The respondent was not aware that the complainant had a disability and did not refuse to serve the complainant and was requested to wear a face mask to comply with Covid 19 government guidelines.

Summary of Complainant’s Case:

At the commencement of the hearing, the complainant submitted a doctor’s note dated 6th October 2022 stating that she suffers from a disability and is unable to wear a mask.

The complainant gave evidence that she was upstairs in the respondent’s store on Thursday 3rd December 2020 when a staff member informed her that she was required to wear a mask in the store. She went downstairs to leave the store and met a store manager at the entrance. She asked whether she had to wear a mask and the manager confirmed that she was required to. The manager requested a letter for proof or exemption and as the complainant did not have any, he said she could not remain in the store. The complainant gave evidence that there were other customers in the store who verbally attacked her. She then left the store, and later that day sent an email of complaint to the store. She felt that she was unfairly treated by the store personnel.

The complainant was cross examined by the respondent’s representative on her knowledge of the government guidelines at that time. She was questioned on why no evidence of a disability was produced to the store manager on 3rd December 2020 and that it was her own decision to leave the store. The respondent representative questioned the motives in making the complaint and requested why the issue of being verbally abused by other customers was not included in the email complaint to the store. The respondent was questioned on her awareness of alternative options provided for safe shopping.

Summary of Respondent’s Case:

Ms O’Moore, HR Manager gave evidence of the staff procedures in place in December 2020 on mandatory mask wearing and/or alternative plastic face coverings for staff with a disability. She outlined the precautions that each store was taking to ensure a safe environment for staff and customers and that there were criminal sanctions if the store were in breach of government guidelines. She outlined that staff were fully aware of the procedures in place and that staff provided a service to customers who did not want to enter the store for safety reasons.

She stated that she was not aware of this specific complaint as it was sent to the UK Office address and that the first knowledge of this complaint was when the complaint was made to the Workplace Relations Commission.

In the closing submission, the respondent’s representative gave a summary of similar caselaw and the requirement that the store need to be on proof of a disability and could not have discriminated if they were unaware of a disability.

Findings and Conclusions:

The complainant has satisfied the requirements of the Equal Status Act in that she brought the issue to the attention of the respondent within two months. She also received a brief email response from the store a few days after the incident. Unfortunately, there was no reference in the email complaint of verbal abuse from other customers and the response just dealt with the face mask requirement. This may have been an opportunity for the complainant and respondent to address the alleged unfair treatment which is one of the reasons for the ES1 form.

The Complainant alleges that she was discriminated against on the grounds of disability in relation to the provision a service.

I must decide, based on the documentation submitted and the evidence adduced at the hearing, whether the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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 38A (1) provides

" 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."

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

It is submitted by the Complainant that she is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

The Complainant did not provide any information in relation to her medical condition to the store manager at the time of the incident. She did submit a letter from her doctor at the Workplace Relations Commission hearing dated 6th October 2022. The letter does not disclose any medical information and therefore I cannot properly assess whether the complainant is suffering from a disability within the meaning of the Act. Furthermore, even if there was a disability, the store manager could not have discriminated on disability, as he was not on formal notice of same at the time. In the event of a garda visit to the store, the absence of any formal documentation would have left the store vulnerable to a sanction.

I do not see that a prima facie case of discriminatory treatment has been made out. The respondent gave evidence of alternative ways for the provision of services which in any event would have been satisfactory as reasonable accommodation, particularly given the health and safety issues prevalent at that time.

I am satisfied that the complainant has failed to establish a prima facia case of discrimination on grounds of disability. The complaint is not upheld, and the respondent did not engage in prohibited conduct.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2018 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I find that this complaint is not well founded as the respondent did not engage in prohibited conduct.

Dated: 4th January 2023

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Key Words:

Equal status, disability