Complainant

Respondent

Parties

Shivaun Mooney

Pimlico Newsagent

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046543-001

05/10/2021

The complainant submits that she was discriminated against by the respondent on grounds of disability in July 2021 when she was refused access to a service following her refusal to wear a face covering.     The claim was submitted on 5th of October 2021. 

The respondent denies that they discriminated in any way against the complainant.    

The complainant submits that

She entered the respondent shop on 19th of July 2021 to purchase milk,

on entering the shop Mr. K, who works in the shop took a mask from the shelf and asked her to put it on

she submits that a number of months prior to this she had advised Mr. K that she was exempt from wearing a mask and had a letter of exemption,

she then told Mr. K that she was exempt and that he was discriminating against her as she has a reasonable excuse, because of a disability,

He then said that she could purchase the milk for now,

She submits that He made her feel very uncomfortable, so she left the shop without purchasing the milk.

The respondent submits that

There was no refusal of service and thus no discrimination

The complainant entered the shop without a mask on the day in question,

Mr. K offered her a mask from the shelf as she was not wearing one.

The complainant refused the mask and Mr. K told her to go ahead and buy the milk

The complainant refused to buy the milk and left the shop

No evidence of any disability was requested or produced.

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”),

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 submitted that the complainant is a person with a disability for the purposes of the Act.   Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

The complainant advised the hearing that she is a person with a disability.  

In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability at the time of the alleged incident and that the respondent treated the complainant less favourably on grounds of that disability.   

The complainant advised the hearing that she entered the respondent shop on 19th of July 2021 to purchase milk, she was not wearing a mask at the time.   She stated that on entering the shop the person behind the counter, Mr. K, took a mask from the shelf and asked her to put it on which she refused to do stating that she had an exemption.

The complainant told the hearing that a number of months prior to this incident she had advised the respondent that she was exempt from wearing a mask and that she had a letter of exemption.

The complainant told the hearing that on the day of the incident she advised Mr. K that she was exempt and also told him that he was discriminating against her as she had a reasonable excuse, because of her disability.   Mr. K then replied that she could go ahead and purchase the milk for now.

The complainant told the hearing that she had then left the shop without completing her purchase as she had felt humiliated and embarrassed.

There are certain facts which are not in dispute in relation to the incident.  Both parties agreed that the complainant attended the respondent premises on the date in question seeking to purchase milk.  Both parties agree that the complainant was not wearing a mask at the time of her attendance and that she was offered a mask by the person behind the counter which she refused.

While there is some dispute as regards whether or not the complainant produced a letter of exemption there is no dispute but that she was permitted to proceed with her purchase notwithstanding the fact that she had refused to wear a mask.  

The complainant in advancing her claim submits that she was refused a service on grounds of disability but in her direct evidence at the hearing she stated that she was permitted to continue with her purchase, but she chose not to.   The complainant when asked at the hearing why she chose to leave the shop without completing her purchase stated that she was too humiliated and embarrassed after being asked to wear a mask.    Photographic evidence was adduced at the hearing in respect of the size of the shop.   It is clear from the evidence adduced at the hearing that the shop in question is small corner shop and that the complainant was the only customer in the shop at the time of the interaction.  The complainant did not dispute this.   It is thus hard to comprehend how or why the complainant was humiliated or embarrassed when offered a mask, which she refused to wear, in circumstances where she was still allowed to proceed with her purchase and while there were no other customers present in the shop to witness the interaction.

In this case, the Complainant was not denied service in the shop and was offered the opportunity to proceed with her purchase which she chose not to do.

I am satisfied from the totality of the evidence adduced in this matter that the complainant has failed to establish that she was treated less favourably by the respondent on grounds of a disability.

In such circumstances, I am satisfied that the complainant has failed to establish a prima facia 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.    

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.

(i) 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.