Complainant

Respondent

Parties

Stephen Kerr

Cambio Investments Ltd T/A Centra Stoneybatter

Representatives

Self-represented 

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00045559-001

05/08/2021

The complainant outlines that he was discriminated against on grounds of disability because he was told that he had to wear a mask to shop at the respondent; the respondent denies the claim.

The complainant outlined that he was discriminated against while attending the respondent shop on the 28th February and 12th May 2021. On the first occasion, a security guard told the complainant to wear a mask and instructed the counter staff not to serve the complainant, who then could not pay for certain items. The Gardai were called and the incident lasted 50 minutes. It ended with the complainant’s arrest. These proceedings were later struck out.

The complainant outlined that he had an exemption on medical grounds from wearing a mask. On the second occasion, the same security guard would not let the complainant enter the store and the complainant was served at the door of the shop. He outlined that the respondent went beyond what was permissible in the Statutory Instrument by directing that he not be served and requiring proof of his exemption.

The respondent outlined that the complainant had refused to abide by their mandatory mask wearing policy. They had a duty of care to their staff and customers. They did their best to accommodate the complainant and others who could not wear a face mask including doing their shopping for them. In cross-examination, the respondent denied going beyond the S.I. The respondent outlined that management had directed that customers without masks would not be served.

This is a complaint of discrimination pursuant to the Equal Status Act. I note the medical certificate submitted by the complainant and I accept that he cannot wear a face covering for the stated medical reason.

Both parties referred to the emergency legislation introduced to address the Covid-19 pandemic, for example S.I. 296/2020 and the related public health advice. The complainant referred to his exemption. The respondent referred to the ongoing public health advice regarding face coverings as well as the Regulations.

It is worth bearing in mind that S.I. 296/2020 was promulgated to address the ‘immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19’, as set out in section 31A of the Health Act 1947 (as inserted at the start of the pandemic).

It was not disputed in this case that Covid-19 is an infectious disease which could be transmitted through the air. It was also not disputed that face coverings provide protection against the transmission of the disease.

The threat to public health was real and immediate. In O’Doherty and Waters v Minister for Health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms: ‘The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated.’

Disability discrimination

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms:

‘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.’

Application of the law to the facts

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonableness in this case must take account of the pandemic. This must take account of the fact that shops and other settings were open for members of the public to attend, including vulnerable groups. It must also take account that the premises were only able to open because employees attended work, irrespective of the risk to them and their households.

Section 4(4) refers to ‘harm’ and it was not disputed in this case that Covid-19 could be a fatal disease that also caused long-term debilitating consequences, at least for some. It was also not disputed that face coverings reduced the transmission of the disease, and therefore, dissipated harm.

It was entirely reasonable for the respondent to mitigate the risk posed to staff and to elderly and vulnerable customers attending an enclosed and busy setting that people wear masks. Irrespective of the complainant’s circumstances, taking account of reasonableness and the risk of harm, the respondent did not discriminate against the complainant by asking that he wear a mask or even insisting on it, given the public health risk and the risk of transmission of the disease. There was, therefore, no prohibited conduct.

CA-000455559-001

The respondent did not discriminate against the complainant and there was no prohibited conduct.

Equal Status Act / face mask