ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034271
Parties:
| Complainant | Respondent |
Parties | John Hennessy | Mulligans Pharmacy |
Representatives | Self represented | Shaun Boylan BL instructed by Thomas Carroll MW Keller & Son |
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-00045063-001 | 06/07/2021 |
Date of Adjudication Hearing: 11/05/2022, 28/07/2022 and 22/11/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 25 of the EqualStatus 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 by me and to present to me any evidence relevant to the complaint.
Background:
The complaint is that the Respondent discriminated against the Complainant on the ground of disability, that he was subjected to harassment and that the Respondent failed to provide him with reasonable accommodation when he was allegedly refused service because he was not wearing a mask when he entered the Respondent’s premises on 15th February 2021 and 5th March 2021. The Complainant was represented by a solicitor on the first hearing date. On the second hearing date, the solicitor did not appear and the hearing was adjourned to give the Complainant the opportunity to be represented should he so wish. On the third hearing date the Complainant appeared unrepresented. He was asked if he was in a position to proceed to which he replied that he wished the case to go ahead and he was happy to represent himself. Having initially objected to video evidence obtained by the Complainant without the individuals permission, the Respondent sought to have the video evidence viewed at the hearing and the evidence was viewed with the permission of both parties. |
Summary of Complainant’s Case:
Prior to the hearing, a written submission was received, summarised as follows:
The Complainant has a disability under the Equal Status Acts. He suffers from asthma. He has letters from Family Practice Medical Centres and Department of Social Welfare confirming his condition. Asthma is a long-term physical condition that impacts on a person’s ability to breathe. The Government ensured compliance with the Equal Status Acts when introducing S.I. 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020. Section 5 of the Regulations states:
(3) 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.
Thus, people with disabilities were excluded from the face covering requirement in accordance with primary legislation.
It is argued that the Complainant by being forced to wait outside the premises when he had clearly gone to get an inhaler for a chronic breathing condition was humiliated. Video evidence obtained by the Complainant was available.
Evidence
The Complainant gave sworn evidence as follows:
He stated that he entered the Pharmacy on 15th February 2021 when a female employee stopped him and told him he had to go outside to be served as he was not wearing a mask. A male employee then came out from behind the counter and shouted at him saying “you’re not coming in here”. The Complainant told this man that he was exempt from wearing a mask. The man replied “you’re not coming in here, you’re not exempt”. The Complainant said that the female employee knew he was exempt, that he was coming into the Pharmacy for years getting his inhaler prescriptions for asthma filled. The Complainant quoted the Respondent’s submission where it was stated at para 38 that the definition of harassment was defined in section 11 of the Act as “any form of unwanted conduct related to any of the discriminatory grounds… being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” The Complainant stated that he felt that the staff were trying to ‘control’ him, making him wait outside. When cross examined by Counsel for the Respondent, the Complainant agreed that he was not refused service but asked to wait outside. He objected to being “dictated to” in being required to stand outside the shop, and it was the manner in which he was spoken to that he had an objection. It was put to him that the female employee said to him you must wear a mask when inside the premises, he said “I don’t wear them”. When Counsel asked was he aware there was a Pandemic at the time, he replied “I am aware there was an alleged Pandemic, but I don’t believe it. It was a con and people were supposed to have died, but I don’t believe it.”
Summary of Respondent’s Case:
Jurisdiction to hear the complaint
In respect of the jurisdiction of the WRC to hear a complaint the Equal Status Act, 2000 (as amended) Act (“the Act”) provides for a condition precedent at section 21 as follows:
“(2) Before seeking redress under this section the complainant—
(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—
(i) the nature of the allegation,
(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”
The Complainant outlined his grounds of complaint in form ES.1 which was dated 28th May 2021. On his own account the complaints relied on occurred on 15th February and 5th March 2021. The complaint alleged discrimination on grounds of disability, harassment and failure to provide reasonable accommodation.
In Klos v Unalex Limited t/a Abrakebabra [ADJ-00031767] the Complainant sent an ES1 to the Respondent by registered post but it was not delivered. The notification requirement in section 21 (2) was therefore not complied with. In finding that there was no jurisdiction to deal with the complaint the Adjudicator held as follows: “The language in section 21 of the Act is prescriptive, clear and specific. Ultimately, it is clear that the obligation to meet the time limits and notification falls squarely on the Complainant. Statutory requirements, such as the notification requirement are an important and fundamental necessary part of a proper operational judicial process and are present to create certainty for all parties and must be fully respected. I am satisfied that only in exceptional circumstances can the notification requirement be dispensed with, as per section 21(3)(ii) of the Act. I am satisfied that a case for it to be dispensed with has not been made out in the instant case under consideration. “
It is argued that there is no jurisdiction to hear the Complaint where the Complainant failed to serve notice on the Respondent within the two months required and where there are no grounds to extend the time period.
Burden of proof
The Respondent submits that the Complainant has failed to establish facts sufficient to discharge his onus of proof as provided for in law. Most notably he has failed to establish treatment less favourable than a person not wearing a face covering without a disability. Alternatively, he has failed to establish less favourable treatment where he was offered and or received the service sought. Alternatively, he has failed to establish that any less favourable treatment arose on foot of his disability as distinct from his not wearing a face covering.
Disability
It is common case that the Complainant suffers from a disability within the meaning of the relevant acts. However, the Respondent entirely disputes the allegation that he was treated less favourably than someone without that disability. Without prejudice to this if he was treated less favourably his treatment did not arise because of his disability. He was entitled to be served outside the store as with those not wearing a face covering and he received the service he sought.
Harassment
The Respondent rejects this allegation in its entirety and submits that no facts were included in the complaint that could amount to same. At no material time did the Respondent’s conduct constitute harassment.
Conflating the operation of SI 296 with Discrimination
Without prejudice to the above the Respondent submits that the complaint as grounded makes it clear that the Complainant’s real issue relates to the treatment of what or commonly misconstrued as “exemptions” to the requirement to wear face coverings.
SUMMARY OF FACTS
The facts relating to the complaint took place in the context of a global pandemic arising from the effect and impact of the Covid-19 virus. At the material time there was legislation and public health guidance in place requiring people to wear face coverings in certain settings (including pharmacies). In addition the Respondent had an ongoing duty of care to its customers and staff arising from both common law and statute law.
15 February 2021
On 15th February 2021 the Complainant entered the store without a face covering and approached the counter. In light of public guidelines and regulations prevailing at the time he was quietly and discretely requested to wear a face covering. The Complainant became loud in tone and replied to the shop assistant that he was exempt. At this point the duty pharmacist came to assist and again explained to the Complainant that he could not be in the store without a mask. However, the Complainant was told that he could wait outside to be served. In light of public health regulations and guidelines prevailing at the time this was the manner in which all persons not wearing face coverings were accommodated and served. The Complainant was then accommodated and served outside the store. At no time was the Complainant refused service.
5 March 2021
On this date the Complainant again entered the store without a face covering and it was explained to him that if he did not wear a face covering that he would only be accommodated and served outside the store. On this occasion no further issue arose and the Complainant waited outside where he was then served.
Statute Law relating to substantive issues
Discrimination
Section 3 of the Act provides that discrimination occurs:
“(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
(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: …
(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”)” [emphasis added]
Burden of Proof
Section 38A of the Act provides that the burden of proof will remain with the Complainant unless he can establish facts from which it may be presumed that he was discriminated against by virtue of his disability.
In the case of Mary Margetts v Graham Anthony & Company Limited [EDA 038] the Labour Court, in deciding on whether facts had been proven to establish a prima facie case such as would shift the burden held that “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
SI 296 / 2020.
The requirement to wear face coverings in certain indoor settings was required by article 4 of statutory instrument 296 / 2020 (“SI 296”) SI 296 was introduced by virtue of powers delegated to the Minister on foot of section 31A of the Health Act, 1947 (as amended) and Article 4 specifically provided that
“(1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without a face covering. …
Furthermore, article 4 (4) specifically placed a mandatory onus on the Respondent to “take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of [the requirement not to enter or remain in a premises without a face covering] and to promote compliance with those requirements”
Discrimination and SI 296
In the case of Tompalski v T O’Higgins Homevalue Hardware [ADJ-00032638] the Adjudication officer held as follows: “…it appears that two distinct issues have been conflated within this complaint. The first is the interpretation of and potential breach of S.I. 296-the interpretation of which is a matter not for an adjudication officer in the WRC but for another place and legislation. … The second issue is a complaint of a failure to provide a reasonable accommodation under the Equal Status Act. … I am inclined to the view that the term reasonable accommodation was not in play February 2nd, 2021 in the shop -rather that the emphasis was on the statutory instrument and the claim that [the Complainant] was entitled to an exemption.
CONCLUSIONS
While it is acknowledged that the Complainant has a disability in the form of asthma it is not accepted that his treatment on the dates in question arose from this. As is clear from the ES.1 the Complainant’s treatment arose, not by virtue of his asthma, but by virtue of his not wearing a face covering. As held in the Margetts case the mere fact of falling within one of the discriminatory grounds does not establish discrimination. Furthermore, if the Complainant was treated differently to someone without Asthma (which is not accepted as all persons not wearing a mask were dealt with the same) he has failed to link this to his disability where, on his own case it arose due to his not wearing a face covering.
In line with regulations and public health guidelines prevailing at the material time all persons in the shop were required to wear face coverings. In this regard the Complainant was not treated any less favourably than any other person seeking to be in the shop without a face covering. The Complainant was treated differently than a person not wearing a mask but this is not a ground of discrimination. He was not treated less favourably than a person without asthma that was not wearing a mask. Furthermore, although he was treated differently than a person not wearing a mask, he was not treated less favourably because he received the service he requested.
The Respondent argues that by offering the service outside the shop, reasonable accommodation was provided to the Complainant. The Respondent further refutes absolutely that any harassment of the Complainant occurred.
The Respondent therefore respectfully submits that in all of the circumstances the Complainant was not treated less favourably, or in the alternative by virtue of his disability and further submits that all relief should be refused.
Evidence
The Pharmacist who was on duty on 15th February 2021 gave sworn evidence. He stated that he heard raised voices and went to assist the female employee who was dealing with the Complainant. He stated that the Pharmacy has a policy of protecting vulnerable persons, especially in times of the Pandemic. The policy of requiring customers to wear face coverings was to protect individuals who are particularly vulnerable. The examples given were individuals who may be undergoing chemotherapy, individuals with down syndrome and others with compromised conditions. The norm would be people who are exempt would show evidence of their situation, similar to showing ID when young persons are seeking to purchase alcohol. The Pharmacy had a policy of politely asking those not wearing masks to wait outside and their order would be given to them. The Pharmacy also went out of its way during the Pandemic delivering to vulnerable people and older people who were afraid to go outside their homes.
Findings and Conclusions:
Preliminary Jurisdictional argument The Respondent argues that there is no jurisdiction to hear the complaint as it is out of time as the most recent incident was on 5th March 2021 and the ES1 form was not received by the Respondent until 1st July 2021. The ES1 form is not a statutory form, being an administrative form designed to aid the parties and I cannot accept the reliance on same to seek to have the complaint ruled out of time. |
Section 21 of the Act provides:
“(2) Before seeking redress under this section the complainant—
(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—
(i) the nature of the allegation,
(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”
I note that the letter dated 16th March 2021 to the Respondent from the firm of solicitors acting for the Complainant states that the treatment of the Complainant by the Respondent on 15th February 2021:
“constitutes discrimination, harassment and/or victimisation on grounds of disability contrary to the Equal Status Acts and was therefore illegal….. If we do not receive a satisfactory response from you as required, and no later than 30 days from the date thereof our Client shall, without further notice to you, file a formal complaint under the Equal Status Acts with the Workplace Relations Commission and seek to have the matter adjudicated.”
I find that by this written communication to the Respondent the Complainant has fulfilled the requirements of Section 21 of the Act and the complaint is within time.
Substantive complaint
The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. 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”) In order for his claim to succeed, the Complainant must have been treated less favourably than another person on the groundsthat one is a person with a disability and the other either is not or is a person with a different disability. Burden of Proof Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. 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. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts. It is common case that the complainant is a person with a disability, being the condition of asthma, for the purposes of the Act. In order to establish a prima facie case, the Complainant must satisfy three criteria in relation to his complaints he must : (1) establish he is covered by a discriminatory ground (in this case the disability ground); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances. In this case, it was not disputed that the Complainant has a disability. The evidence adduced shows that the Complainant was asked to step outside the Pharmacy and his order would be given to him. The evidence is that all persons who could not or would not wear a mask were treated the same. The Complainant relies on the Statutory Instrument SI 296 / 2020 on foot of section 31A of the Health Act, 1947 (as amended) which requires persons to wear face coverings in certain settings and provides for those who cannot wear a face covering to be exempt. Similar to the case of Tompalski v T O’Higgins Homevalue Hardware [ADJ-00032638], I find that in this instant case, the emphasis was on the statutory instrument and the claim that the Complainant was exempt from wearing a mask. The complaint here for adjudication is under the Equal Status Acts and not the interpretation of and potential breach of S.I. 296. It is common case that the Complainant received the service and his complaint is that the manner in which he was treated was the problem. The significant point made by the Respondent in submissions and evidence was that the Complainant was asked to step outside the Pharmacy because he was not wearing a mask, not because he had a disability, i.e. asthma but because he could not or would not wear a mask. In such circumstances I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of disability. Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on grounds of disability. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision. The complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015. |
Dated: 11th January 2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Discrimination on ground of disability, mask wearing, not upheld |