Complainant

Respondent

Parties

Michael  Aherne

Horkans Group Central Office

Complainant

Respondent

Anonymised Parties

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Representatives

  Michael Aherne, Complainant

Kevin M. Bourke sol (resumed hearing)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045327-001

23/07/2021

This case is concerned with the events of 24 April 2021 when there was what can best be described as an altercation between the Complainant and members of the Respondents staff around Mr. Ahernes refusal to wear a face covering on grounds of what he informed staff was an exemption. The Complainant is claiming discrimination on the protected ground of a disability through a failure to provide him with a reasonable accommodation i.e., that he should have been permitted to avail of the service to the public without wearing a face covering.

The Respondent is a provider of goods and a service to the public generally for the purposes of the Act.

Mr. Aherne issued an ES1 to the Respondent on 26 May 2022 and submitted his complaint to the WRC on 23 July 2022. He received no reply to the ES1. When the former manager received the complaint from the WRC, he completed the ES1 which formed part of that documentation and it was through this paperwork that Mr. Aherne received a reply to the ES1. No issue arises regarding the Complainants adherence to the requirements to issue the required notice to the Respondent.

Mr Aherne

The Complainant submitted a letter dated 23 November 2020 (23/11/20) from his GP which is the letter of exemption he relies on this case and which is the one which he had with him on the date in question.

The Complainant described what occurred at the Garden Centre on 24 April 2021. He spoke with a member of staff whom he described as ‘red-haired’- (witness B- about a particular item and examined two different products. In discussion he asked which of the products he saw was the best. At that point he was asked about wearing a mask. He replied that he had a medical exemption -which he had in his bag. He kept it there wrapped in plastic to protect it from the rain as he cycled a lot. B then demanded to see the medical exemption saying, ‘show it to me’. When he replied that it contained private and confidential information, B said she was going to get a manager. The Complainant welcomed this as he thought a manager will deal with this situation correctly. When he came out, the manager told hm to put on the mask or leave the store. He did not ask to see the letter of exemption.

He had relied to the request as he had in all other situations including on his frequent use of public transport exactly as he had in the garden centre-that the medical letter contained private and confidential information. In all those situations, the member of staff would say that they had a job to do, to protect the members of the public and he would then produce the letter from his doctor. The member of staff would say that was grand.  That is what he thought would happen in the garden centre. Instead, B seemed to decide that he was lying and went off and poisoned the manager against him. The Complainant referred to statistics about the effects of mask wearing and the impact on oxygen and carbon dioxide levels and the impact of those on B who was wearing a mask, noting that it was also a hot day. He described B as quick tempered.

 At no stage did he refuse to provide the letter.  Twice he said to the manager that he had a medical exemption in his bag, but the reply was put a mask on or leave. The manager then said he would call the Gardai and the Complainant thought good. He sat down and waited for the Gardai to arrive, but they never came. While this was happening, staff were glaring at him, and customers were staring at him. After 30 minutes he rang the Gardai who said that they had received a report but that it did not ‘seem serious’. He provided his name and address and some months later he received a call from the Gardai to say that they would be calling to his house in Foxford, to make sure he was there on the day and to have his letter of exemption ready. He said he would, and he waited in all day, but they never came to his house.

The Complainant stated that he had a serious lung condition. When the first cases of Covid were reported, he was among the first people in Castlebar to wear a mask-one he made himself-and he was laughed at. Two weeks later everyone was wearing them. However, he found that wearing a mask made his lung condition worse and caused him anxiety, hence the letter he received from his doctor some months later.

The Complainant posed the question why he would have contacted the shop a couple of days before hand to check if they had the item he was looking for and then cycle 14 miles to the garden centre if he was not going to wear a mask (and risk not being served).

In his cross examination and in his summary of his case, the Complainant emphatically denied being asked for proof of his exemption more than once-by the supervisor. Furthermore, he denied that he was offered a fast-track service of bringing the goods he wished to buy to the till and exiting the store. Why would he have refused such a service.

 The entire situation was badly handled by the Respondent, and they should apologise.

In his closing remarks following the evidence, Mr Aherne said he that was ordered to put on a mask. He had a medical report in his bag. He was in countless situations where that explanation was accepted by service providers including on public transport and he described some where he was required to show the report. The report did contain personal medical information. He was not asked for the report other than once by the supervisor witness B. After that he was told to put on a mask or leave. He was shocked at the way he was treated comparing it negatively to the way the same situation and information was handled in another shop. He had been shopping in Horkans for years.

In some of his questions to witnesses the Complainant had asked if they were aware of protests taking place in Dublin at the time. Asked by the Chair why he felt these questions were relevant, the Complainant replied that he thought they believed he was lying, that he was anti mask.

Respondent Evidence

Day 1 Hearing

Respondent Witness A-Sharon Brennan

The witness gave evidence that she was in the shop on the day in question. She saw the Complainant approached by two other members of staff first Witness C and then witness B.

She first described the conduct of the Complainant as argumentative and obnoxious and then a little bit un -cooperative. As far as she was aware he had not offered documentation-she was serving another customer at the time. The Complainant then sat down for quite a long time.

Asked about the procedure at the store if a customer was not wearing a mask, she replied that if they were not wearing a mask, they were to ask them to put one on, or told them to leave if they did not have an exemption. The witness confirmed to the Complainant that she had seen other letters of exemption and they would have contained personal information starting with their DOB and address.

Asked by the chair what accommodation was available if the person would not wear a mask, the witness said they could ring the store and the item would be brought out to them.

Day 2 Hearing

HR Manager Horkans Colette Doogan

The witness explained that she was responsible for Covid compliance measures throughout the stores in her capacity of HR Manager. She had no involvement in the situation on April 24th, 2021. She described the measures taken in the stores including the signage about mask wearing. The advice to staff was to ask those not wearing a mask to wear one and for those claiming an exemption to seek confirmation of that exemption. Customers who did have an exemption were to be fast tracked through the store so that they spent as little time as possible circulating on the premises. In her role she was following Government guidelines issued on April 7th, 2021, and advice from Retail Excellence Ireland. Click and Collect arrangements were in place as an alternative to entering the store or customers could ring ahead and order goods for collection. The witness clarified that to obtain an exemption a medical report would be required.

Respondent Witness B -Joan Corday

The Witness confirmed that she was on duty on the day in question. She is a supervisor at the store. She described the controls in the store with signage everywhere about wearing a mask and a one-way system for going through and then exiting the garden centre. If a customer was not wearing a mask it was the duty of staff to take action.

On the day in question, she became aware of Mr Aherne being served by another member of staff and not wearing a mask. She and the member of staff -witness C- asked him about wearing a mask. He replied no, he didn’t have a mask and said he had an exemption. He tapped his bag and said he had it in there. When asked could she see it he replied, no. She recalled he was looking at a garden shears and she told him he could bring it quickly to the check out at which point he became very irate, saying he was not going to be fast tracked or speed up. Witness C went to get the store manager-GK. The witness was there when the manager arrived and asked the Complainant to wear a mask or a visor. Mr Aherne said he had a letter but when asked to show it he refused, saying it contained private and confidential information. He was asked to show the document on numerous occasions but refused. She said he was not co-operative. When the manager said he was going to call the guards the Complainant became even more irate saying he was not going to leave the store.

The Complainant went and sat over on a display and stayed there for about twenty minutes. He may have called the guards himself. He was agitated and speaking loudly. A lot of people were looking. He had the shears and was waving it about. The guards did arrive later, after Mr Aherne had left.

Asked to clarify for the Chair the advice given to staff if a customer didn’t were a mask, the witness said there were meetings every morning. She then said there was a government card which contained a date of birth and the name of a doctor. Asked by the chair to clarify about this card she said she thought that some of these were issued by the HSE or had the HSE logo. They were advised to seek a letter from a doctor claiming an exemption and referred to Moodle training which they received.

Respondent Witness C Leonie O Malley

The witness is employed by the Respondent for ten years and confirmed she was on duty on the day in question. She was working in the plants section when she became aware of Mr Aherne looking at a pair of shears. He approached her workstation and started to ask her a question about the shears when the supervisor came up behind and asked him about not wearing a mask. He replied no he was exempt. She asked if he had a letter and he said, yes in his bag. When she asked could she see it he replied no, it was private and confidential. The supervisor offered him that he could go to the till and make his purchase and leave, that he wasn’t staying in the store without a mask. Several times he was asked to show the letter but refused. He became irate and the witness said she was going to get the manager. She told the manager that there was a customer not wearing a mask and not willing to leave. The manager came down and he asked him to show the exemption letter, but Mr Aherne refused saying it was private and confidential. The manager told him he was going to have to leave. The Complainant got louder and louder saying he didn’t want to leave. The manager called the guards. The Complainant went and sat on a display for a moss removing item.  He made phone calls and was quite loud. Customers were aware of him. She did not see him leave.

Referring to the card some customers wore when they couldn’t wear a mask the witness explained to the Chair that these were laminated cards that were worn around the neck. The ones she recalled had images of sunflowers. She saw them advertised online. Different groups had them. You could buy them in the supermarket. These were accepted as proof of exemption and referred to a couple of times where she saw them worn by customers. She never read them or asked about them, adding that because of where she was situated in the store, she would not have been the first member of staff to see the cards being worn, and someone else may have asked about them.

Mr Aherne asked the witness did he not say to the supervisor-witness B- that he had medical evidence in his bag and when she asked to see it, he said that it contained personal and confidential information and that she did not have a medical qualification. The witness replied that he did say the information was personal and confidential and refused to provide it.

The witness later helpfully obtained and displayed on her phone for the hearing, the card with the sunflowers which contained the words Hidden Disability. The Complainant remarked that these did not refer to Covid and had nothing to do with it.

Summary of Respondent Case Day 1 and 2

In response to the inquiry about the ES2 it appears that the manager made an error or misunderstood when he received the complaint from the WRC and replied setting out the response at that stage. The form was not brought to the attention of the HR Manager at the time. There was no dispute about the receipt of the ES1.

Written submission

The situation at the time of these events was a heightened level of Covid in the community. Government guidelines were issued only a couple of weeks before that day. The main priority was to provide a safe environment for staff and customers. Among the measures adopted was an audio played every four minutes reminding customers of the need to wear a mask while shopping. Mask wearing was mandatory and this was notified to customers on a display which also said that if the customer was unable to wear a mask, they could approach a member of staff who would help them with their purchases. Failure to wear a mask was a criminal offence and Mr Aherne escalated the situation by refusing to show his medical report to staff when requested. The first time the Respondent saw the medical report was when it was supplied to them by the WRC. 

In response to the evidence on the second day of hearing, Mr Bourke referenced the Covid situation at the time. Briefings by government occurred very close to the day in question. In order to support a complaint under the Equal Status Act, a person must be able to demonstrate they have evidence of a disability and be able to show staff that he had such a disability. The staff in Horkans were not aware of any disability on the part of the Complainant and had no way of knowing. He himself said he had cycled nearly twenty kilometres to the garden centre so how could anyone know he had a physical disability. On a few occasions, the Complainant referred to himself as being exempt but produced no evidence to support that claim. Why, when he had evidently gone to the trouble of obtaining the medical report in question to support a claim of exemption explaining why he could not wear a face mask, did he not simply produce it on the day. He could have waived his right to patient confidentiality.  But for one reason or another he decided no to do so. The Respondent was entitled to seek the grounds of the exemption (clarified as under S.I.296) and applied the same rule to all others using the business at the premises i.e., wear a mask or provide an exemption on medical grounds. Producing that letter (of November 2020) would have got over the problem. And it is the position of the respondent that the Complainant was offered a way of doing his shopping on the day.

By way of an observation, were it not for a fatal flaw in Mr Ahernes case, it could be found that the Respondents approach to some of those who claimed an exemption on medical grounds comprised different treatment for people who claimed to have different disabilities. While not strictly necessary that I do so, for the benefit of the Respondent for any future reference, I have decided to explain this conclusion.

The definition of discrimination under the protected ground of a disability as set out in the Equal Status Act is as follows:

(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”),

The Act refers to reasonable accommodation as follows:

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.

I am satisfied from the Evidence of the witnesses on Day 2 of the hearing, that a person wearing a laminated badge (particularly one containing an image of sunflowers) which could be purchased online and contained no information other than that the person had a ‘hidden disability’ was treated differently and more favourably than a person claiming to have medical exemption such as Mr Aherne. The person wearing the laminated badge, containing no reference to Covid or an inability to wear a face covering, could access the shop freely without disclosing medical information, whereas a customer claiming to have a different disability but not wearing the same type of information, in this case Mr Aherne, was required to produce medical information of a confidential nature even though his medical condition was also not self-evident. For failing to produce evidence of his disability in the form of a medical report, I am satisfied Mr Aherne was told to leave the premises.  Regarding the claim of a fast track service being offered allowing this potential offer may well have been the Respondents policy and may well have been offered to others who for example forgot their mask but given the heated and acrimonious nature of the exchanges which I am satisfied occurred with little or no effort to diffuse once the manager became involved, the likelihood of such a reasonable approach being repeatedly  offered seems highly unlikely and is not referenced as having been offered in the response to the ES1 form submitted by the then manager to the WRC. There was a row about wearing or not wearing a mask and producing or not producing medical information and that was about the height of it from the point where the supervisor became involved, continuing on through the involvement of the manager. Mr Aherne was not entirely blameless in this situation, and it is hard to answer the common-sense question posed by Mr Bourke-if the Complainant went to the trouble of obtaining the letter he was relying on, why not produce it.

In many of these cases before the WRC, there was a refusal or inability to provide medical information at any stage to justify the complaint of discrimination on grounds of a disability and by extension a complaint under the Section of the Equal Status Act dealing with a reasonable accommodation. I am satisfied that Mr Aherne objected to proving the medical report to the supervisor for the reasons he himself put to witness C in cross examination-questioning the supervisors medical qualification. He then expected to be treated in a particular and different fashion by the manager and when that employee’s reaction was unexpected, he and the entire situation became aggravated, on both sides, each now blaming the other. Whether the Complainant repeatedly refused to present the document to the manager having failed to produce it for witness A and B or whether he was just told to leave by the manager becomes moot when the document which he relies on for the purposes of his complaint is examined.

In order to maintain a complaint of discrimination on grounds of a disability and a claim for a reasonable accommodation (being refused), a Complainant must establish that they have a disability because of which and without such accommodation they could not access the service or goods or facility in question with undue difficulty. Crucially, Mr Ahernes medical report does not contain the necessary medical evidence of a disability which would entitle him to claim a reasonable accommodation-in this case that he be exempted from wearing a face covering at the time.

The wording of the certificate was as follows:

‘Michael suffers from chronic bronchitis and feels he experiences exacerbation of symptoms on mask wearing. For this reason he hopes to refrain from mask wearing.’

On the second day of the hearing, Mr Aherne responded to the undersigned that he accepted that the wording of the certificate did not say he was unable to wear a face covering for medical reasons but rather that he would prefer to refrain from doing so. While he did refer to the doctor in question being young and not really knowing what he was doing or words to that effect, the written words are those of a qualified medical practitioner. The facts are that Mr Aherne did not have a certified medical disability which required the reasonable accommodation he claimed should have been provided by the Respondent. In circumstances where he cycled twenty miles each way to the garden centre on the day in question and spoke about his activities in such a way as to suggest that he was indeed a very active person, at the time what he wanted the Respondent to do was to accede to his preference not to wear a face covering, rather than suffering from any disability which they were obliged to accommodate if possible. This is apart altogether from the fact that in the argument which ensued, Mr Aherne did not reach into his bag and offer the medical report which he possessed.

In summary, the Respondent should reflect on way they applied their policy in this matter in terms of the differing standards of proof required of those with claimed exemptions and in particular different disabilities. This said, it is Witness Cs evidence in particular around this issue was that of a person genuinely trying to accommodate people with particular needs and came across as well intentioned.

 Mr Aherns complaint fails on the facts before the hearing within the provisions of the Equal Status Act and the necessity within that legislation to be able to demonstrate that there is a disability not in general but for the purposes of supporting the complaint of discrimination claimed and the accommodation sought.

CA-00045327 I find that the Respondent Horkans Garden Centre did not discriminateagainst the Respondent Michael Aherne as claimed and therefore I find the complaint is not well founded.

Equal Status- Reasonable Accommodation - Mask Wearing Regulations.