Complainant

Respondent

Parties

Báirbre  Barrett

Tralee Roast House Limited

Representatives

  Self-Represented

Mike Stack Orbitus Law LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048927-001

24/02/2022

The Complainant submits that she was discriminated against on the grounds of disability when she was refused service at the Respondent’s café/restaurant  during the Covid-19 pandemic because she could not wear the required  mask due to her disability. The Respondent denies discrimination on the basis that the Complainant never informed the Proprietor at the material time that she had a disability nor was any medical proof of disability subsequently furnished to the Respondent. Furthermore, the Respondent asserts that the Complainant’s reason for not wearing a mask was because of her political position on mask wearing.

The Respondent raised a preliminary point that the complaint should be deemed out of time on the basis that it was not properly submitted within the six-month period demanded under the Equal Status Acts 2000-2015 (the Acts).

Summary of the Evidence of the Complainant:

The Complainant gave evidence under oath. The Complainant said she suffered from Post-Traumatic Stress Syndrome  (PTSD) and was under the care of a psychiatrist at the material time. She stated that she was also asthmatic. Both of these conditions made it difficult for her to wear a mask. She said that on the date in question, 8 December 2021, she was out of work due to her disability and was in receipt of a  disability payment.

On the foregoing date she crossed over from her studio with her young  son to get some coffee at the Respondent premises. She said that the Proprietor, Ms. Linda Carmody, immediately told her to leave the premises  when she saw that she had no mask. The Complainant then told Ms Carmody that she was exempt.  The Complainant said that when  she was asked for medical proof, she told Ms. Carmody that she did not need to give such proof under GDPR (General Data Protection Regulation) rules. The Complainant stated that she did not agree with  the Government  restrictions as she believed  they breached her constitutional right to buy food and otherwise not wear a mask. She also believed she was discriminated against because of her appearance, as well as her disability.  

In cross-examination the Complainant denied calling Ms. Carmody a “Nazi cunt” in her interaction though she did accept  an email she sent to the Respondent on the day in question, which was copied to the Workplace Relations Commission by the Complainant, contained the signoff “You Nazis.”  

In a closing statement the Complainant said she was segregated and discriminated against on the day because of her disability. She submits  that the behaviour  of the Proprietor in asking her to leave in a vocal and public manner, left her feeling humiliated in front of her young son and other people that she knew.   

Summary of the Evidence of Ms. Linda Carmody:

The witness gave evidence under affirmation. The witness said that the Complainant entered the premises  on the day in question without a mask, which was  demanded by the Government regulations at the time.  She challenged the Complainant who stated that she was exempt but when the witness asked for proof of exemption the Complainant became very irate and  said she was exempt under GDPR, without showing any proof of exemption. The witness stated that when she asked the Complainant to leave, the Complainant  called her (the witness) a “Nazi cunt”.

In cross-examination, it was put to the witness that she was in breach of GDPR when she asked the Complainant for her medical records. The witness said  she did not ask  the Complainant for her medical records but rather  some proof that she was exempt. The witness said that she had regularly served maskless  customers who showed a card or certificate to show exemption.

Summary of the evidence of Ms. Darlene Lacey:

The witness gave evidence under affirmation. She stated  that she was a full-time employee with the Respondent. He duties included opening and closing the café each day. On the day in question, she witnessed the interaction between the Complainant and Ms. Carmody  and described how the Complainant entered without a mask and refused to give proof of any exemption. She described the Complainant as being abusive on the day. She stated that she heard the Complainant call Ms. Carmody a “Nazi cunt” when she was asked to leave.

In a closing statement, the Respondent submitted that the stance the Complainant took on the day had nothing to do with disability but was a political stance based on her admitted opposition to the Government imposed legal restrictions at the time. Furthermore, the Respondent contends that no evidence of exemption on medical grounds was furnished by the Complainant on the day therefore  the Respondent had not engaged in discrimination under the Act.

The Respondent raised a preliminary issue with regard to the time-limit for the formal submission of the complaint. It has long been established that the  complaint form is not a legally binding document. Though the Complainant did not use the advised complaint form in a conventional manner, I am satisfied that the email sent to the Respondent on 8 December 2021, and copied to the WRC on 24 February 2022, reasonably fulfilled the criteria of submission, without any perceived prejudice to the Respondent regarding the nature of the complaint it had to face.  

The Burden of proof provision at section 38A of the Acts provides:

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be resumed 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.

 The Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. Firstly, I must establish if the Complainant had a disability. The Complainant submitted that she suffered from PTSD. Photo shots of documentation from the HSE, which the Respondent claims were not received by them,  seem to suggest that the Complainant was under medical supervision for mental health issues. I am satisfied therefore that she had PTSD. However, she also said in verbal sworn testimony at the hearing that she was asthmatic , which, she stated, made the wearing of a mask difficult. No certifying  documentation or reference to this illness was submitted in her written submission prior to the hearing. However, under the circumstances, I am satisfied that the Complainant suffered from PTSD and therefore had a disability.

It was uncontested evidence in this case that the Complainant did not produce documentary evidence, nor otherwise inform the  Proprietor  on the day of the nature of her disability when challenged upon her statement of being exempt under the regulations, which applied  at the time of the Covid-19 pandemic. Furthermore, I also preferred the evidence of Ms Carmody and Ms Lacey regarding the use of profane language by the Complainant. I find that the Complainant was evasive in her overall evidence. This included  refusing to answer questions in cross examination  with regard to her political position on mask wearing  despite her having previously referred to her opposition to the regime of regulations, both  in her written submission and verbal testimony.

Having carefully examined all of the evidence heard, I am satisfied that while the Complainant stated that she had an exemption , she refused to provide medical evidence of  exemption to the Respondent on the day. It seems to me that the Complainant was seeking confrontation rather than   any reasonable  accommodation of a purported disability.  The Respondent cannot be held to have discriminated against the Complainant on the grounds of disability when the Respondent is not made  aware of a  disability. The mere proclamation of exemption  by the Complainant, absent any further verifiable, was not sufficient for the Complainant to establish a prima facie case of discrimination.

For the reasons outlined above I decide that the Complainant did not establish a prima facie case of discrimination therefore I find that the Respondent did not engage in prohibited conduct under the Acts.

Equal Status Acts 2000-2015,  Disability, Mask Wearing, Covid-19.