Complainant

Respondent

Parties

Geraldine  Fitzmaurice

Crowes Grocery and Bakery Store

Representatives

  Self

 No attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047855-001

21/12/2021

This case is concerned with the events at the Respondents Premises in Sixmilebridge County Clare on November 17th, 2021, on which date, the Complainant alleges that she was discriminated against on the disability ground; she was harassed and victimized and also that the Respondent refused to provide the Complainant with a reasonable accommodation. The events of that day and the alleged breaches of the Equal Status Act all relate to the wearing or refusal to wear a mask as required by the Respondent-related to the public health emergency known as the Covid Pandemic. 

A copy of the ESI form was submitted as having been sent to the Respondent on 18 November 2021. A copy of that document together with a tracker notice were provided to the WRC with the complaint form. The complaint was received by the WRC on December 21st, 2021.

In her evidence, Ms Fitzmaurice explained that the Respondent who she named as Ms Bernie Crowe runs three stores. One of these is in Bunratty. The Complainant lives in the area and she went to the Bunratty premises on the morning of November 17 2021 for a coffee and a scone. Some customers started shouting at her- because she was not wearing a face covering. Staff at that premises told her to get out of the place. She tried to explain that she was exempt, but she was ordered off the premises.

Later that day she spoke to one of the family members who said that she should not have been told to leave.

That evening, around 11pm the Complainant went to the premises in Sixmilebridge-to get a coffee and scone-adding that the store opens late-until around 11 15 pm. She saw the owner, Mrs Crowe and went over to her near the deli counter. She approached the Respondent because she wanted to de-escalate the problem. She said she wanted her to know that she, the Complainant was medically exempt. It was her evidence that Mrs Crowe started shouting at her, that she should not be in the shop without a face covering. The Complainant explained that she exempt for medical reasons. The Respondent shouted at her to produce a medical cert and she started to produce it also stating that to have to do so was a breach of her rights under GDPR. She referred to the confidentiality of her medical information and where would the information be held. She explained to the Respondent that she was in breach of the Equal Status Act and the 2005 Disability Act. She compared her situation to that of a person with a guide dog or a Roma Gypsy. The Respondent was shouting at her, show me your medical cert and then get out you can go to the Centra Shop. The Complainant did not go back to the premises after that, she felt humiliated-she lives in the area. For many years she went to the premises owned by the Respondent located near where she lives. Due to the refusal of entry and the refusal to serve her without a face covering-she felt banned from parts of her own county.

In general, the Complainant expressed the hope that this situation would not occur again. That shop owners needed to know their rights and also their obligations under the goods and services terms of the Equal Status Act. She expressed the view that the State through the HSE needs to provide clearer guidance and support to everyone involved. In her complaint form, the Complainant referred to an exemption badge. At the hearing she provided a copy which was laminated document which she herself had prepared based on a similar item produced in the UK authorised by the Government who worked with Charities to resolve problems for people with disabilities. The Complainant told the Respondent she had this exemption badge and wanted to show it to her.

Discrimination on grounds of a disability/failure to provide a reasonable accommodation.

The Complainant provided a copy of a medical certificate from a surgery in Limerick dated 20 July 2020. The cert stated: “Severe Panic Disorder and is unable to tolerate wearing a face covering or visor” This was submitted to the hearing as medical evidence of a disability. The Complainants position is that she was not required by S.I.296 to provide such medical evidence to the Respondent. However, she did indicate that she would be willing to do so as a gesture, provided she could be assured of the necessary protections and privacy would be in place and would not be passed to any third party, for example. This was not acceptable to the Respondent on the day in question.

Asked to explain the complaint of harassment-she referred to the definition within the Act of harassment based on any of the grounds. Mrs Crowes treatment of her was offensive towards her as a person with a disability-this element of the complaint is based on the way she was treated by Mrs Crowe.

Asked to explain her complaint of victimisation-the Complainant stated that she was treated unfavourably and suffered a deterrent in not being allowed to stay in the shop because she made a complaint of discrimination to the Respondent, exercising her rights (under the Equal Status Act). Other stores did not make an issue of her not being able to wear a mask.

In a closing statement the Complainant queried the burden of proof when the Respondent was not in attendance at the hearing. She was ordered out of the shop illegally-in not attending the hearing there is the potential for no accountability for her actions by the Respondent. The Complainant was ;eft in a very difficult situation, her rights were taken away-and if there are no consequences for such actions(in the absence of a defence) this makes a mockery of the legislation.

No submission was provided by the Respondent for consideration by the Complainant and no evidence was presented at the hearing.

Relevant Extracts from the Equal Status Act considered in this decision

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

As the named Respondent provides goods and a service to the public generally, this section of the legislation applies to the circumstances of this case.

Redress in respect of prohibited conduct-Notification to the Respondent

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission

(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,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

On the basis of the documentary evidence provided by the Complainant, and in the absence of any evidence or submission which could show that the notification was not received by the Respondent, it is accepted that the Complainant complied with the terms of Section 21 in notifying the Respondent of her complaint, providing an opportunity for the Respondent to reply and an opportunity to explain their position, and in doing so, within the body of that form notified the Respondent of her intention to pursue matters under the Equal Status Act 2000 as amended.

I am satisfied that the Complainant complied with the terms of Section 21 of the Act.

Response of Respondent to ES1

26.—If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission—

(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),

(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or

(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission,

the Director of the Workplace Relations Commission may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

Section 26 (a) and (c) are for further consideration in this case.

Discrimination (general) including Victimisation.

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(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, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

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”

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

Discrimination on ground of disability.

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.

Complaint: Failure to provide a reasonable accommodation -accommodate needs of a person with a disability

Accommodation of Needs of a person with a disability

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.

Complaint Alleged Harassment

Sexual and other harassment.

11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

(c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority.

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

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.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Burden of Proof

38A. — (1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Complaint of discrimination/reasonable accommodation

Accepting that the Complainant possessed at the material time a medical certificate which confirms that she could not wear a mask for stated medical reasons. Consequently, it is accepted that at the material time the Complainant had a disability as defined under the Equal Status Act. The fact remains however that according to her own evidence the Complainant while informing the Respondent that she had the relevant medical certificate, instead of providing that certificate to the Respondent or even showing it to her, began to defend her right not to disclose the medical evidence or to provide the certificate. Instead, she commenced a line of questioning as to whether the medical evidence was protected information and if she provided it to the Respondent how it would be protected. From the sequence of events, it appears that it was at that point the Respondent became annoyed, possibly incensed and the Complainant left the premises having been told not to return unless she was wearing a face mask. The context of these exchanges merit noting. The Complainant was engaged in a dispute about mask wearing in another premises operated by the Respondent on the morning of the same day. She subsequently contacted a family member about that event and appears to have received some form of reassurance or certainly a response which was not unacceptable to her, but here she was approaching the Respondent in person at 11.15pm at night on this same issue of her right to an exemption from mask wearing. It is not credible that she was seeking a service i.e. a scone and a coffee at that hour. The timing of that approach and the disputatious nature of it in both questioning the right of the Respondent to have the medical information and referring to her own rights under legislation were hardly conducive to diffusing the situation, the desired effect sought by the Complainant as explained to the hearing of this complaint. Nonetheless, the Complainant was entitled to take the view at that point that she was being refused a service which was available to the public generally albeit on a conditional basis. Even accepting that the Complainant was told to leave the premises and was told that she could not avail of the Respondent’s services without wearing a mask, it is difficult to arrive at the same conclusion as that drawn by the Complainant: that the actions of the Respondent on the night in question represented discrimination on grounds of disability or a failure to provide a reasonable accommodation by exempting her from wearing a mask. All other customers were required to follow the same statutory guidelines, but while accepting that the Complainant referenced her rights under the Equal Status Act, she then provided no evidence of a disability and when afforded the opportunity to do so engaged in a further and separate dispute around her right to privacy. It was not unreasonable for the Respondent to conclude at that point that there was no disability or certainly to adopt a position that there was neither a disability nor grounds for an exemption. The tag worn by the Complainant at the time of the incident complained of a copy of which she provided at the hearing, has no material relevance in this matter. It is simply a piece of paraphernalia which she created herself from studying the responses of the UK authorities and the contents make containing  assertions regarding fines and other matters which are simply not comprehended by the Equal Status Act or indeed the guidelines issued by the Irish Government at that time.

The undersigned continues to have an underlying concern that in arriving at conclusions in such cases based on the absence of a medical certificate such a reasoning could lead to a situation that in order to access any service or to obtain different treatment from an abled bodied person for example, that the person with the disability would be required at all times to disclose private personal information to complete strangers. In this aspect, as someone who has adjudicated on a number of these cases, concur with the views of the Complainant that should such a situation occur again the need for clarity for those providing and those receiving services generally available to the public would be of great benefit in avoiding the type of dispute which occurred in this case and which has been presented to the WRC on many, occasions in the period 2020/2021,often between people who were known to the Respondents as regular customers. Nonetheless, the ask of the Complainant in this case was that she would behave in the same way as all other customers, which is to say that she would wear a mask. For the purposes of the Equal Status Act, the Complainant is required to demonstrate that she has a disability and, where that disability is disputed, to provide medical evidence to support her complaint. The fact remains and is key to this case that she provided that medical information quite willingly to an adjudication officer but was unwilling to provide to the person providing the service and questioned the right of that person to seek and obtain that information while at the same time referencing her own rights under the Equal Status Act. I find that on the basis of the facts of the case as presented at the hearing the Complainant has no basis for a complaint of discrimination against the Respondent based on a disability when she provided no evidence of such a disability to the Respondent while at the same time seeking to rely on that disability. In the same vein I find that the Complainant was not entitled to a reasonable accommodation under the Equal Status Act based on the attitude she adopted towards the Respondent where when provided with an opportunity to demonstrate her disability she failed to do so.

The complaint of discrimination/failure to provide a reasonable accommodation is not well founded.

Complaint of harassment

With regard to the complaint of harassment on grounds of disability, this aspect of the claim makes no sense given that at no stage did the Complainant satisfy the Respondent that she did indeed have a disability, and it is beyond a reasonable stretch to conclude that the Respondent was acting against the Complainant because she had a disability when in fact she was simply seeking evidence of that disability and none was provided. It is important to distinguish between a person being offended by the actions of a service provider and those actions constituting discrimination for the purposes of section 3 of the Act and the Complainant has failed to demonstrate that the treatment which she experienced stemmed from her having a disability. In the interests of clarity, it is accepted that the Complainant’s evidence of her sense of humiliation and distress on the night in question is credible in circumstances where she was in effect being denied a service by a person in her locality and a place where she described having attended on many occasions in previous years.

The complaint of harassment is not well founded.

Complaint of victimisation

Regarding the complaint of victimisation, this section of the complaint has been examined with particular care owing to a real concern that the Complainant may have suffered a reaction from the Respondent in part at least due to her referring to her rights and the Respondent’s obligations under the Equal Status Act. The failure of the Respondent to reply to the ES1 and their failure to attend a hearing to provide evidence to rebut the complaint and the evidence of the Complainant underscores this concern that the Complainant may have experienced a negative response when she sought to establish her rights under the Equal Status Act. It has been accepted that the Complainant has a disability which on medical grounds allowed that she was unable to wear a mask. However, it is also evident that the Respondent did not accept this as a matter of fact and sought and/ or was offered evidence then denied that evidence in support of a claim for an exemption based on a disability. The comparator in this case cannot be a person who does not have a disability since that person would be required to wear a mask and it is difficult to see how it can be a person with a different disability when there is no evidence that the Respondent differentiated between individuals who sought exemption on medical grounds. The conclusion therefore is that the Complainant is unable to establish a claim under Section 3.( 2) that she was treated less favourably than any other person with a disability or a person with a different disability when it has to be assumed that the Respondent was applying the same statutory guidelines as the Complainant referred to, i.e., S.I. 296 under the Health Act 1947 issued for the purposes of providing guidance regarding the wearing of face masks. At its very height the Complainant could argue that she was opposing by lawful means an act which is unlawful under this Act, i.e., to discriminate against a person who has a disability, but the Complainant cannot break the circle which surrounds her case which is based on an unproven, undemonstrated claim of disability which was the basis of her representations to the Respondent for the purposes of an entitlement under the Equal Status Act. The Complainant chose not to provide medical evidence on the night in question and while she may have considered that she had legitimate grounds for refusing or delaying providing the information and seeking all manner of assurances regarding the disclosed information she cannot escape the fact that she sought to rely on a disability and then failed to provide evidence of that disability to the Respondent. Entering into a debate about her rights under different pieces of legislation does not amount to having opposed by lawful means discrimination (subsection 3(2) (iv) refers. Making a reference to the Equal Status Act does not amount to ‘having given notice of an intention to take any of the actions specified in paragraphs (i) to (iv)’-subsection 3(2)(v) refers.

The complaint of victimisation is not well founded.

In respect of all aspects of her complaint, the Complainant, on whom the burden applies in the first instance, has failed to reach the standard of proof required to succeed in those complaints.

CA-00047855-001 I do not find in favour of the Complainant on any aspect of her complaint under the Equal Status 2000 as amended. No redress is ordered based on the decision under section 25.

Discrimination-access to goods and services