Complainant

Respondent

Parties

Sarah  Mcardle

A. O'Gorman & Company Limited O'Gormans Supervalu

Representatives

  self

Michelle Loughnane Mullany Walsh Maxwells LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00044779-001

24/06/2021

On or about 5th of February 2021 the Complainant stated that she was refused entry to the Market Square Shopping Centre even though she was exempt from wearing a mask on the ground of disability. It is alleged that the company and its owner engaged in prohibited conduct arising from that blanket ban on her entering and shopping in the store for failing to wear a mask.

In a letter dated 12th of February 2021 sent to the Respondent, the Complainant wrote that the owner’s refusal to allow her to enter the store on or about the 5th of February 2021 was discriminatory. The Company’s policy of implementing a no mask no entry policy breached her rights under the Equal Status Act.

The Complainant stated that she was exempt from wearing a face mask as defined at regulation 5 of SI 296 and her reasonable excuse was that as provided at 5(a) of the regulations.

The Complainant had attempted to resolve the matter amicably but had been met by a refusal to engage with the grievance in a rational way.

The Complainant stated that she was berated by a Grainne O’Gorman who works in the store when she rang her on the 11th of February 2021, who it is alleged lectured her on her irresponsible behaviour and that she was putting staff and customers at risk.

The Complainant stated she would have complied with the request to wear a mask or not to enter the shop; however, she believed based on her research no such scientific evidence existed which stated that wearing a mask stopped the spread of Covid.

The Complainant alleged that she was discriminated against by reason of her disability by the owner failing to provide reasonable accommodation for her disability so that she could access services generally available to the public.

The Respondent contested the medical evidence that the Complainant had a disability.  In fact, no medical evidence whatsoever had been presented at the hearing. While the Complainant stated that she had Asthma, the Respondent will deny that the Complainant informed him on the 5th of February 2021 that she had a disability that exempted her from wearing a mask and that she requested reasonable accommodation because of that disability. She may have stated that she was exempt but that is not the same thing as stating she was looking for reasonable accommodation based on her disability. The Complainant had produced no medical evidence at the hearing of her disability that could be tested.

It is also the case that the Respondent provided alternatives to physical onsite shopping and would either deliver to customers or physically take a shopping list from them and bring the shopping to their car or to their home.  

The Respondent stated that the Complainant had not established a prima facie case.

The Respondent also relies on section 4(4) of the Act that states:

(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

In evidence the Complainant submitted a letter from her GP dated 11th of February 2022 which stated:

The above patient informs me that she cannot put on, wear or remove a face covering without severe distress. I can confirm that she has been diagnosed with asthma.

The Complainant stated that she had walked frequently with the owner’s partner who knew she had asthma.

The Complainant submitted several studies including those referenced by WHO that found no statistically significant effect of high-quality medical face masks against Covid infection.

S.I. No. 296 of 2020 states:

Requirement to wear face covering

4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.

And regulation 4 (4) states:

(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.

The Complainant has claimed that she has a reasonable excuse for not wearing a mask as detailed in the regulations.

However, the manager as a responsible person as defined in the regulations is required to take reasonable steps to engage with persons entering the shop to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.

Section 14 of the Equal Status Act 2000 as amended states:

14.— (1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i)                  any enactment or order of a court,

The manager was fulfilling a legal obligation when he engaged with the Complainant to inform her of the requirement to wear a mask in the shop. The complainant relied upon a reasonable excuse to explain why she was not wearing a mask.

The Respondent has put in issue whether the Complainant has a disability as defined under the Act :

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;

It has been argued by the Respondent that the medical evidence submitted dated February 2022, nearly a year since the incident occurred does not state that the Complainant had a disability that prevented her from wearing a mask. It is also argued by the Respondent that the GP in her note is simply repeating what the Complainant told her that she experiences stress when she wears a mask. The Doctor had not concluded that arising from her disability a mask would be stressful. No evidence has been presented that she had a disability exempting her from wearing a mask on the date alleged in February 2021, and as that is in dispute, and no Medical Practitioner has attended at the hearing, no prima facie case has been made out by the Complainant that she had a disability.

No medical evidence has been presented to the tribunal that on the date of the alleged incident the Complainant has a disability that prevented her from wearing a mask. What the Complainant relies upon is a medical note dated February 2022 and no medical practitioner has attended the hearing.

The Complainant relies on regulation 5(a):

Reasonable excuse

5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if -

(a) the person cannot put on, wear or remove a face covering -

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress,

Discrimination in the Act is defined as:

3.— (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

The Complainant has argued that under the relevant regulations she had a reasonable excuse not to wear a mask and that she was denied reasonable accommodation arising from her disability.

It is a fact that the Supermarket required customers to wear a mask as required under public health regulations. On the sworn evidence of the owner, I accept that the shop provided customers access to shopping through online delivery or by a customer giving a shopping list to a staff member who in turn would bring the shopping to the customer or to the customer’s car. The Supermarket therefore was providing reasonable accommodation.

While the Complainant contests that wearing a mask provided any statistically significant protection, the law required that masks be worn:

4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering

A Complainant must establish a prima facie case based on facts of significance that may give rise to a presumption of discrimination. Equality Officers in the past have relied on the case law of the Labour Court as persuasive authorities on what that test requires.

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference of discrimination and in a recent case Public Appointments Service and Mr Bernard Lester (EDA 2022) the Court detailed what this meant

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The fact of a disability is in dispute and no medical evidence has been presented to the hearing that on the day of the alleged prohibited conduct the complainant had a disability. The Complainant has not made out a prima facie case that she was treated less favourably than others based on the ground of being disabled. What she asserts is that she was exempt and therefore should have been allowed unfettered access to the shop.

The requirement to provide reasonable accommodation is set out at section 4:

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.

The Complainant has not made out a prima facie case that she was refused reasonable accommodation.

I determine that the Complainant has not provided evidence to this tribunal that she had a disability that in turn prevented her from wearing a mask.

I determine that the Complainant has failed to establish a primary fact that could raise a presumption that she was denied reasonable accommodation.

As the Complainant has not established primary facts that give rise to a presumption of discrimination, I determine that the Respondent did not engage in prohibited conduct.

The Complainant has not made out a case that she was refused reasonable accommodation.

I determine that the Complainant has not provided evidence to this tribunal that she had a disability that in turn prevented her from wearing a mask.

I determine that the Complainant has failed to establish a primary fact(s) that could raise a presumption that she was denied reasonable accommodation.

The Complainant has not made out a prima facie case of discrimination and therefore the Complainant is not required to rebut that presumption.

As the Complainant has not established primary facts that give rise to a presumption of discrimination, I determine that the Respondent did not engage in prohibited conduct.

Mask-Discrimination