Complainant

Respondent

Anonymised Parties

An Individual

An Aquarium

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048719-001

20/02/2022

The Complainant in this matter was a regular customer of the Respondent and an avid aquarium hobbyist. The Respondent is a specialist aquarium store.

The Complainant attended the hearing and was assisted by a translator. The Complainant gave evidence under oath. The interpreter under affirmation.

The Respondent’s Director and Store Manager both attended and gave evidence under affirmation.  

At the outset the Complainant indicated he would like the matter to be heard in private as he had to present private medical information to the hearing.

The Respondent indicated they were happy for the matter to proceed in public.

With reference to the published WRC guidance on this issue, dated the 22nd of December 2021, I note that 'special circumstances' may include circumstances where a party has a disability or medical condition, which they do not wish to be revealed. As this is such a case I was of the view that the matter should be heard in private and the resulting decision anonymised.

This complaint concerns an instance on the 3rd of January 2022 when the Complainant attended the Respondent’s store but was asked to leave due to him not wearing a face mask.

The Complainant outlined his submissions as already provided to the WRC and Respondent.

He is clear that he has no issue with the Director or Store Manager personally and that they helped him on the day in question.

His issue is with the law and his view that the Respondent’s policy contradicts the law. His view is that the law has been broken.

The Complainant outlined that he had Covid in 2021. It had a huge effect on his health and in particular his breathing. Following having had covid he perpetually felt like he could not get enough oxygen into his lungs. At times had to sleep sitting up.

This feeling of lacking oxygen was extremely stressful.  He couldn’t function normally and wearing a face mask exacerbated his shortness of breath. He had significant anxiety putting on the mask.

The Complainant outlined that these health issues meant he could no longer wear a face mask. In major retailers like Lidl, Tesco and Aldi this was not a problem once he clarified he was exempt from the requirement.

On the 3rd of January 2021 the Complainant attended the Respondent’s shop. At the time the Complainant maintained a fish tank as a hobby. This helped him relax and have peace of mind. He would often sit and enjoying looking at the underwater world after a long day’s work.

The Complainant entered the store. After walking in the Store Manager asked him to leave as he didn’t have a mask on. He moved towards the door but was distracted by a particular type of fish. He was again asked to leave.

The Complainant was extremely upset about this. He spoke to the store manager outside the store. He had note from his GP who he had visited earlier that day confirming that he didn’t need to wear a mask but they didn’t ask for it. He tried to explain that he was exempt.

The Complainant provided GP consultation notes dated 27/01/21. This confirmed that during this time he experienced repeated refusals from other businesses who would not let him shop without a face mask and that this had a huge impact on his anxiety. It got to a point that he needed sedatives to go shopping.

The Complainant referred to the statutory instrument SI 296 of 2020 which is the SI that brought in the requirement that customers wear face coverings.

 Section 5 provides an exemption for those who experience physical or mental illness which makes wearing a mask difficult or distressing to opt not to wear the mask.

The Complainant states that he bought only two fish, but he was also thinking of buying food and felt he could not without being permitted to enter the store. He focused of this kind of fish because he really wanted to buy them for a while. He also wanted the proof that he was there.

The Complainant also submitted that he was entitled to be treated the same way as an Irish native but does not elaborate on this point.  

The Complainant submitted detailed breakdown of the impact of this interaction and the financial compensation he feels is owed. He believes he should be awarded €2000 for humiliation, €2000 for experiencing an incredibly traumatic and stressful situation, €2000 for unfair treatment, €2000 for him giving up his hobby and selling his fish tank, €3360 for two years of psychotherapy resulting from this incident and €1000 for the Respondent breaking the law. In total this sum comes to €11360.

The Respondent’s Director presented their case and gave evidence. He agreed with the Complainant that they had a very good relationship with him as a customer. He had visited the store seven times in the last year. The Respondent are a small family business and survive only because of repeat customers like the Complainant. They operate in a relatively out of the way location so are reliant on word of mouth referrals and an excellent reputation. It is necessary for them to keep people happy.  

It is important to restate the context of when this interaction happened. Covid was a horrendous experience for the store.  The Director thought that the store was going to have to close. They are an expensive business to keep open, more like a zoo than a normal retailer, the fish have to be fed an maintained. They require a big staff and lots of other overheads.

Thankfully, after the first shock of the pandemic and reduction of business, people still had to keep their tanks clean and upkept. Throughout the course of the pandemic, many people put more resources into their hobbies as well, so business returned.

If their store had closed would have created a big problem for the community who rely on them. They are a one in a kind store in Ireland and them leaving would have created huge issues for those who maintain aquariums, particularly the larger ones in hospitals and care facilties which patients greatly enjoy.   

The Respondent employs nearly 30 staff. The Director was adamant that his staff went above and beyond through the pandemic. He attributes this to the fact that they also participated in the hobby and were entrenched with the community that relied on the Respondent business. However the pandemic took its toll and each went through mental turmoil some time. The Director states that it felt like wartime. He himself worked 7 days a week throughout the pandemic and worked into the night often.  

A major threat to the store was the possibility that some staff would feel they could not continue to attend. Some staff members lived at home with older parents or those with conditions that made them especially vulnerable to the pandemic. They were genuinely worried that they were going to kill their parents by attending work and some were under pressure to stop coming to work. They only did so to keep the store going and to keep their community functioning.

As such, even before the government guidelines were introduced, the Respondent took a very strict and cautious approach to Covid. They instated a one-way walkway and set minimum distances customers could be from each other and the staff. Masks were being worn masks before government guidelines mandated them.

As a result not one staff member got covid over the two and a half years. When they relaxed after the government lifted restrictions last year that changed. The Director himself was hit extremely hard after getting covid, he was bed bound for 9 days and collapsed on a number of occasions. He had also experienced long covid symptoms and at times couldn’t wear masks. The Director adapted to this and wore vizors or at times did not go shopping. The priority was about the health and lives of other people not his own convenience.

The store presented a number of options to allow those who couldn’t wear face masks to still be served.

These were: the option to use complimentary single use vizors instead; the option to be served at the door where and a member of staff would extensively explain what was in stock and even take videos of individual tanks on their phones; the option for customers to be served in the same manner but from their car; the option to have products sent to their home and for which the Respondent would pay for their freight; the option to order online with the same level of consultation as outlined above (staff would regularly whats-app customers videos of the fish they were interested in and let customers chose individual fish).

After over two years of this system all they had had was positive feedback. The Complainant is the only one who has a formal complaint.

The Complainant raised the fact that he is not an Irish native, this is simply not relevant, on the day in question he was served by the store manager who is foreign national and most of the staff are foreign nationals.

The Store Manager noted in his evidence that there was some confrontation with some people when they were asked to wear a mask or leave the store. However, that this was not the case with the Complainant.

The conversation he had with the Complainant was normal and polite. On the day in question the Complainant entered the store without a mask. In these situations, the Store Manager always asked people to go outside so there would be no question of causing the customer embarrassment in front of others.

The Complainant stated he was exempt but did not mention any disability. The Store manager asked him to go outside to have a chat around the side.  The Complainant stopped near the door to look at a fish tank, the Store Manager asked him again to go outside so they could talk.

There was no animosity in the interaction. Outside the store the Complainant explained that he wanted 2 pygmy puffer fish. He Store Manager offered to take photos so he could choose. However the Complainant didn’t need them, he made his purchase and went on his way. The Store Manager was shocked to receive a letter from the Complainant alleging discrimination.

The Store Manager confirms that he didn’t ask the Complainant for medical evidence or further information on his supposed exemption.

The Store Manager’s father-in-law, who he lives with, has COPD. He was extremely cautious during the pandemic. The Store Manager was of the view that if people weren’t required to wear masks a number of staff would have walked.

The Director added that they had up to 10 people a day, saying that were exempt. Often this was untrue and they didn’t want to wear a mask. They would normally go away if they were challenged.

The Director apologised to the Complainant if he felt offended or stressed as was not their aim, they were trying to protect their store and their customers.

I can conclude that the following happened on 3rd of January 2022.

The Complainant entered the Respondent store without a face mask while the Covid 19 pandemic restrictions were still in full effect.

The Respondent’s Store Manager politely asked him to step outside. In this interaction the Complainant stated he was exempt from having to wear a mask but failed to provide any further detail and in particular failed to draw the Respondent’s attention to the Complainant’s disability.

The Respondent’s Store Manager then served the Complainant from outside the store.

The Complainant bought two fish and went on his way.

I see no merit to any complaint under the Equal Status Act arising from the above facts.

I do not find in favour of the Complainant in relation to any of the grounds submitted by him under Section 21 of the Equal Status Act. An award of redress under section 27 does not arise in the circumstances.

Face Mask