Complainant

Respondent

Parties

A Customer

Tesco Tralee

Complainant

Respondent

Anonymised Parties

{A Customer}

{text}

Representatives

Michael Kinsley BL Tesco Ireland Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044009-001

27/04/2021

The Complainant is a customer of the Respondent.

The Complainant suffers from a disability. She says she is unable to wear a mask and has a medical exemption. She claims that she has been discriminated against, harassed, and victimised by the Respondent and the Respondent refused to accommodate her disability on 17th January 2021. The Complainant alleges she was assaulted by a manager from Tesco and refused custom on 17th January 2021 while the Covid-19 emergency measures were in force. She went into the store for the second time that day without a mask. When she went to the self-checkout, she was holding her shopping and a hot cup of coffee from another store. She was bullied and humiliated by the Manager of the store in front of her home town community. Her shopping was pulled out of her hands as she was not wearing a mask. She was refused service. Her hot coffee was spilt over her hands.

This caused the Complainant great upset and distress. She has a leg injury at the moment and this shop is the closest. She has to go further each day to shop and can’t shop in the Respondent’s store anymore. The Complainant relies on Statutory Instrument 296 of 2020 (Health Act 1947) (S31 A Temporary Restrictions) (Covid-19) (Face Coverings in certain premises and businesses) Regulations 2020 and says she is not able to wear a mask. Face masks are not mandatory there is a medical exemption. She says the Respondent has not complied with SI 296 of 2020.

The Respondent implemented safety measures in compliance with public health regulation for staff and customers while Covid-19 emergency measures were in force. It provided a copy of its policy for staff regarding mask wearing. The policy states that a manager approaches a customer not wearing a mask, reminds them of government guidelines and offers them a mask. A manager is not required to ask for reasons when a customer says they are exempt.

In January 2021, the Government imposed level 5 restrictions following a spike in cases of Covid-19. When the Complainant entered the store on 17th January 2021, she was not wearing a mask nor lanyard available from the store to indicate she was exempt. She was approached by the Manager who quietly asked her to wear a facemask, and began shouting saying she would sue him, she didn’t have to wear a facemask and it was a breach of her constitutional rights. She said she was exempt from the requirement. The manager said “That is fine” and walked away. She did not say the reason why she was exempt. The Complainant shouted that the staff and customers were just “sheep”.

The Complainant proceeded to the checkout and continued to direct verbal abuse and bad language at the manager, shouting at the top of her voice. Owing to her abusive behaviour in front of customers and children, the Complainant was requested to leave the store. The Manager and another member of staff tried to give the Complainant back her coffee but she lunged at them, and the coffee spilt all over the staff and checkout. The Respondent cleaned the area. The Gardai arrived to the store following the incident. They viewed the CCTV and were satisfied there were no grounds for complaint. The Complainant is a prominent anti-mask and anti-lockdown campaigner.

The Respondent says the Complainant has not adduced any evidence of discrimination, harassment, victimisation and failure to reasonably accommodate her disability. The burden of proof is borne by her. The Respondent says it was not made aware of any disability suffered by the Complainant.

The Respondent relies on the Labour Court ruling in Dyfin Publications Limited v D Spasic ADE08/07. The Respondents witness evidence and CCTV show the Complainant’s verbal abuse which was the reason for her being requested to leave the store. This is not connected in any way to her disability. The Respondent acted reasonably as they owed a duty to the other customers, when the Complainant was behaving aggressively and abusively.

The Respondent relies on the decisions in Lyttle v Buy Wise Discount Stores Cost Cutter North Strand ADJ00032493 and Tompalski v O’ Higgins Homevalue Hardware ADJ00032638. The complaint of victimisation is misconceived as no evidence of victimisation has been adduced.

I heard and considered the written submissions, oral evidence of the parties and the CCTV. Given the nature of the Complainants disability, I am anonymising her identity in this complaint.

An incident occurred at the Respondents store in Tralee on 17th January 2021. The Complainant notified the Respondent of her complaints when seeking CCTV from the head-office. She did not use the Form ES1 however, I am satisfied that the Respondent was aware of the nature of her complaint within two months of the alleged incident on 17th January 2021. The complaint was received by the Workplace Relations Commission on 26th April 2021.

The Complainant alleges she was discriminated against by the Respondent on grounds of her disability, harassed, victimised and reasonable accommodation for her disability was not provided in terms of Section 3 (1), S 3 (2) (g) and S4 of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts.

Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (g) provides that as between any two persons, that one is a person with a disability and the other either is not or is a person with a different disability. S4 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.

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant has provided medical evidence of a disability within the meaning of the Employment Equality Acts 1998-2015. SI 296 of 2020 applied at the time of the incident which directs a responsible person to take reasonable steps to engage with persons entering certain premises to encourage compliance with mask wearing. It also states that a mask should not be required where the individual has a “reasonable excuse” which includes a disability.

This incident took place at the height of the pandemic at level 5 when businesses were endeavouring to comply with health and safety law to keep customers and staff safe. I have watched the CCTV of the incident, which does not include audio. It can be seen from the CCTV that the Manager Mr. F walks away from the Complainant on two occasions, however she continues to direct conversation towards Mr. F.

The Complainant’s evidence is that Mr. F insisted she wear a mask, she became upset as she couldn’t wear a mask. When she refused to wear a mask, she was told to leave, and had to leave without her shopping and coffee. Mr. F and Ms. R who were present at the hearing gave evidence of shouting and bad language by the Complainant. Ms R did not witness the initial discussion of Mr. F with the Complainant.  Mr. F said the reason for refusal of service was the Complainant’s behaviour, not wearing a mask was not the issue. This can be seen from the CCTV.

Having carefully considered the evidence, I am not satisfied that the Respondent discriminated, harassed or victimised the Complainant, or failed to provide reasonable accommodation for her disability.

The complaint fails.

The complaint fails.

Discrimination, mask, behaviour reason for exclusion, disability discrimination