Complainant

Respondent

Parties

Dylan Prinsen

Southgate Dental

Representatives

Peter Duff Peter Duff & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047234-001

18/11/2021

The Complainant is a member of the public.  The Respondent is a dental clinic.

The matter was heard by way of remote hearing on 6 October2022, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

The Complainant submits that he was discriminated against by reason of his disability, in the provision of a service, on 13 August 2021.

In his complaint to the WRC the Complainant stated that he was refused treatment by the staff of the Respondent Dental Clinic because he was unable to wear a face covering, even though he informed them that he was unable to wear a face covering when the staff of the clinic asked him to wear one. He submits the staff then escalated the situation by insisting he wear a face covering and then refused him service. 

In his ES.1 Form, opened to the hearing, the Complainant submitted that when he informed a staff member at the clinic that he could not wear a face covering, he was told he must wear a mask or present a letter of exemption. The Complainant replied that there was no such thing as a letter of exemption. 

In evidence on Affirmation, the Complainant stated on the 13 August 2021 he attended the dental clinic. When he entered the clinic, he was told by a member of staff that he had to wear a face covering. He told the staff member that he “cannot wear a face mask”.  In response she told him that if that was the case, he would have to produce a letter of exemption.  The staff member then asked one of the clinic doctors, Dr Roka, to talk to the Complainant. 

When Dr Roka approached the Complainant, the Complainant told the doctor he could not wear a mask. After some dialogue, the Complainant asked the doctor if he was being refused service because he could not wear a face covering and he was told yes, that was the situation. The Complainant stated that he was being discriminated against and he told the doctor that he would sue.  The doctor gave the Complainant his card. At this the Complainant sought and received a refund and left the clinic. The Complainant submits that the incident caused him great stress and anxiety.

In cross examination the Complainant stated that he did not have a registered disability, but that he does not have to show that he has a disability or does he have to explain his condition.

When asked why he had not told the clinic staff what it was that prevented him from wearing a mask, he stated that he did not have to give a reason.

The Complainant denied he had become aggressive during the incident, that he had thrown a board on the floor or upset other patients. 

In concluding, the Complainant stated that he was very disappointed at the attitude of the staff in the clinic.  The incident had affected his attitude to attending dentists.

Ms Michelle Lambe, a staff member of the clinic, gave evidence on Affirmation on behalf of the Respondent. 

Ms Lambe stated that on the day in question she was at the reception desk when the Complainant came in.  She asked him to wear a mask. She explained that some patients are exempt and are not asked to wear masks. Before she could ask him for a letter of exemption the Complainant stated that he did not have to give one. At this point Ms Lambe said she would have to let the dentist know there was an issue. Ms Lambe stated that the Complainant was rude from the start.

Ms Lambe stated that when Dr Roka arrived on the scene, he remained calm and asked the Complainant whether there was a medical reason he could not wear a mask.  In response the Complainant stated that he did not have to wear a mask. Ms Lambe said she was left shaken by the incident as was a pregnant patient who had been in reception at the time.

Dr Roka, a dentist in the clinic, gave evidence on Affirmation.

Dr Roka stated that on the day in question he was requested by Ms Lambe to go to reception to speak with a patient.  The Complainant told Dr Roka that he did not have to wear a face covering.  Having explained the medical situation, Dr Roka asked the complainant on what basis did he not have to wear a mask. Dr Roka stated that the Complainant responded by saying that he did not have to prove anything. In the ensuing dialogue the Complainant did not disclose the reason why he did not have to wear a face mask.

Dr Roka stated that the Complainant had been rude throughout the interaction, and he felt threatened by him. Dr Roka stated that he saw the Complainant leave and drive away on a motorbike.

In concluding, the Respondent representative put forward that the Complainant did not and has not set out that he has a disability either on the day of the incident or at the hearing.

The issue for decision by me now is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of 3(2) of the Equal Status Acts, 2000-2015.

In reaching my Decision I have considered all 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 three questions that arise for consideration in this Equal Status Act Adjudication are:

(i)    Did the Complainant have a disability?

(ii)    Did the Respondent, at the material time, know he had a disability?

(iii)  Was he refused a service/ discriminated against because of his disability?

My findings in relation to these three points:

(i) In his complaint to the WRC the Complainant asserted that he had a disability which prevented him from wearing a face mask. However, the Complainant did not provide any evidence to support this contention.  It is up to the Complainant to prove he had a disability which prevented him from wearing a mask.  Without credible evidence I cannot find other than he has not reached the threshold required to prove the existence of such a disability, therefore his claim falls at the first hurdle.

For the sake of completeness, I will now look at points (ii) and (iii).

(ii) In addition to being satisfied that the Complainant suffers from a disability, I must also be satisfied that the Respondent was aware of the disability and that the Respondent treated the Complainant less favourably on grounds of that disability. In this instant case from the evidence adduced I find the Respondent was not aware of a disability, if any existed, such as to render the wearing of a face mask impossible for the Complainant.  The fact that the Complainant stated he was unable to wear a face mask does not amount to proof of a disability. Proof requires more than assertions. If follows that if the Respondent was unaware of the existence of a disability it could not have treated the Complainant less favourably than on the grounds of the alleged disability.

(iii) Was the Complainant denied a service? I find he was. However, was the result of his own actions and the Respondent is not guilty of anything other than trying to protect the health of the staff and of other patients present in the clinic.

The Complainant asserts that he was treated less favourably on the grounds of his disability. To establish this the Complainant is required to demonstrate that a prima facia case of discrimination exists. 

I find that for the reasons set out above that the Complainant has not proven that the Respondent acted in manner which was discriminatory.

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.

For the above reasons I find the Respondent did not engage in prohibited behaviour.

The Respondent did not engage in prohibited behaviour.

Face mask, discrimination.