Complainant

Respondent

Parties

Jean  Murray

Dictamin Limited Hannon's Supervalu Ratoath

Representatives

  Self-represented

Brian Rennick Rennick Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043700-001

21/04/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under oath while two witnesses for the respondent, the manager and the owner, gave their evidence under oath and affirmation respectively.  Both parties were afforded the opportunity to cross examine the witnesses.

The respondent’s representative indicated that he had made written submissions late in the evening the day before the hearing took place.  It was indicated to the representative that these submissions had not been received by the time of the hearing and accordingly would not be considered in relation to the decision.  The representative accepted this and made short oral submissions instead.

A member of the public was facilitated in attending this hearing.

The complainant took a claim under the Equal Status Acts on the basis that she was discriminated against in the provision of services on the basis of her disability.  She also submitted that she was not provided with reasonable accommodation to enable her to access the services.  The complainant indicated that she suffered from a specific illness.

The complainant submitted that on 1 January 2021 she went into the respondent’s retail premises and was accosted by the manager who asked her to wear a mask.  The complainant submitted that she did not have to wear a mask as she was exempt from doing so.  The complainant submitted that she was repeatedly asked to wear a mask or provide proof of her exemption.  She submitted that she was not required to show proof under the Disability Act and the Data Protection legislation.

The complainant submitted that she was treated with hostility, rudely and disrespectfully.  She added that the respondent totally disrespected her disability.  The complainant submitted that the respondent manager stated when referring to her exemption “No, you’re not, where is your proof”

The complainant submitted that the respondent called the guards to deal with matters and that three guards attended the scene.  The complainant submitted that she showed the guards her exemption information and that afterwards she continued doing the shopping for her neighbour.

The complainant submitted that she did her shopping under mental duress and had to be supported by the butcher.  She also submitted that another staff member asked after her wellbeing.

The complainant submitted that she was treated disgracefully, and that the respondent should have allowed her to do her shopping in a manner that respected her disability.  The complainant submitted that she has a right not to disclose her medical information.

The respondent denied the complainants claims in their entirety.

The respondent submitted that the complainant has not established the existence of her disability in that she has not produced any evidence of the existence of her disability either during the incident she is complaining of nor during the hearing of this matter.  The respondent indicated that the complainant was advised that as a alternative to in-person shopping, they could deliver her shopping to her home or to her car in the carpark.

The respondent submitted that the manager approached Gardai who were present in the store as customers.  The respondent does not accept that the Gardai indicated that the were happy of the complainant not to wear a mask.

The respondent denied the suggestion of discrimination and indicated that the complainant has not established the existence of discrimination and that the burden rests of the complainant to show facts from which discrimination may be inferred.

The respondent submitted that the complainant should have made all reasonable efforts to satisfy the reasonable requests of the respondent in terms of the Government guidelines in place at that time to deal with the Covid pandemic.

As regards the alleged failure to provide reasonable accommodation, the respondent submitted that complimentary facemasks were available and alternatives to in-person shopping were offered to the complainant.

The respondent submitted that the complainant is a well known Covid 19 denier and Anti Mask campaigner and that she is taking this complaint on that basis.

The complainant’s case is that she was discriminated against by reason of her disability and that the respondent treated her unlawfully by discriminating against her in the provision of services.  The complainant submitted that she suffered from a specific illness but conceded that she did not show the respondent any evidence of this.  In addition, she did not present any evidence to the Commission of the existence of the illness or any other disability, other than oral testimony of having a disability to the hearing. 

The complainant did not outline how the illness she noted in her testimony amounted to a disability simply stating that she was exempt from wearing a mask.  She noted that that she has a right not to disclose her medical information and that this was sufficient to satisfy the requirements of Statutory Instrument 296/2020.

The instant complaint is taken under Section 21 of the Equal Status Act, 2000 (as amended), Section 3 the Act of 2000 contains the following provisions:

(1) For the purposes of this Act discrimination shall be taken to occur—

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 3(2)(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 2 of the Act defines disability as follows

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

Having regard to the foregoing submissions I note that the first element for the complaint to establish is the existence of a disability under the Act and secondly is required to establish that she was treated less favourably than another person, who did not have a disability, would be treated.

As regards the first element of the Act, the existence of a disability, the complainant stated that she had a disability but provided no supporting documentation or witness testimony in support of this contention.  She also confirmed that she did not provide evidence of such a disability to the respondent.  Accordingly, I am not satisfied that she informed the respondent of the existence of a disability that rendered her unable to wear a face covering in accordance with the Government guidelines in place during the Covid pandemic.

Having regard to the evidence presented to me, I am not satisfied that the complainant has established that she has a disability that would bring her within the definitions outlined in the Act.

The submission and evidence of the respondent is that they were following the governmental guidelines on mask wearing.  Notwithstanding this, the respondent submitted that the complainant was allowed “continue to shop”.  The evidence of the complainant is that she proceeded to do her shopping indicating that she was “not leaving the shop, I’m exempt”.

The compliant indicated that she was upset, and a number of staff members enquired after her welfare.

Having regard to the evidence presented to me by both parties, it appears that the respondent’s staff sought to have anybody who was not wearing a mask to do so.  I am satisfied that this is unrelated to the existence of a disability but rather follows the Government guidelines for dealing with all members of the public.  Accordingly, I conclude the respondent treated all persons not wearing a mask in the same fashion and did not treat the complainant any differently on the basis of her alleged disability.

Section 38A(1) of the Equal Status Act, 2000 outlines that “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.” 

Having regard to Section 38A(1), I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred. 

As regards the complainant’s contention that she was not afforded reasonable accommodation, the respondent indicated that the complainant was offered special treatment in the form of a face covering, she was offered alternatives to in-person shopping in the form of home delivery or delivery to her car in the carpark.  This evidence was not contested by the complainant and in the circumstances, I find that she has not established that she was denied reasonable accommodation.

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complainant has not established facts from which discrimination may be inferred and it is my decision that no prohibited conduct has taken place.

Equal Status Act – disability not established – facts not established to infer discrimination – no failure to provide reasonable accommodation – no prohibited conduct