Complainant

Respondent

Parties

George-călin  Breban

James Lyons And Company U.C. O'Keeffe's Supervalu

Representatives

  Self-represented

 Jeff Hitchmough BL instructed by O'Donovan Murphy & Partners LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00049513-001

04/04/2022

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

CA-00049513-002

04/04/2022

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

CA-00049545-001

06/04/2022

This case consists of three complaints under the Equal Status Act 2000.

This case pertains to an incident on 11/01/2022, whereby the Complainant, along with a friend, entered the Respondent business (a supermarket in Bantry, Co. Cork) while not wearing face masks.

The Complainant alleges that he was discriminated against under the Equal Status Act 2000 on the ground of disability on 11/01/2022; that he was harassed under the Equal Status Act 2000 on the 11/01/2022 and 12/01/2022; The Complainant further alleges that he was victimised under the Equal Status Act 2000 on the 12/01/2022 when he returned to the business the following day again not wearing a face mask.

The Respondent denies all claims.

An unusual aspect to this case is that the Complainant covertly recorded audio of the interaction on 11/01/2022 and applied to have the audio entered into evidence, at the hearing. The person covertly recorded without his consent was Mr. Ronan Dempsey, supermarket manager. At the hearing, consent was given by him, through the Respondent’s barrister, for the audio to be entered into evidence, and played at the hearing, subject to the Complainant giving sworn testimony that he had not altered or amended the recording in any way. The Complainant gave that oral evidence, and on foot of that, the audio was entered into evidence and played at the hearing.

The Complainant had initially made an application for a postponement of the hearing, as a witness of his (RS) was unavailable. The Adjudication Officer reserved her decision in relation to that. The Complainant was then raising no objection to proceeding, once he heard that the Respondent was consenting to the audio being entered into evidence, subject to the caveat set out above. The audio was 7 minutes and 49 seconds in length.

At the request of the Adjudication Officer, and within a time-frame laid out by her, the Complainant submitted to her a copy of the audio, subsequent to the hearing.

The Complainant did not seek to submit any audio pertaining to the incident on 12/01/2022.

An ES1 Form was issued by the Complainant on 04/03/2022.

An ES2 Form was issued by the Respondent on 28/03/2022.

The Complainant then issued a document entitled “Notice of Rebuttal” which sought to address the contents of the ES2 form.

The Complainant filed two complaint forms with the WRC – one on 04/04/2022, containing two complaints and one on 06/04/2022, containing one complaint.

The Adjudication Officer, at the start of the hearing, reminded all parties to turn off their phones.

In attendance, were:

For the Complainant:

·       The Complainant, Mr. George Breban, representing himself.

For the Respondent:

·       Mr. Jeff Hitchmough BL

·       Ms. Barbara Daly, O’Donovan Murphy Solicitors (instructing)

·       Mr. Gerry Devine – Operations Director, O’Keeffe’s Supermarket, Bantry

·       Mr. Ronan Dempsey - Store Manager, O’Keeffe’s Supermarket, Bantry – witness

The Complainant submitted a number of written documents as well as a copy of the audio pertaining to 11/01/2022 and gave oral testimony on his own behalf at the hearing.

CA-00049513-001 – relates to 11/01/2022 – WRC claim filed on 04/04/2022

Submissions, as per the complaint form:

“On the 11th of January 2022, while taking a lunch break with a friend of mine, we went towards the deli counter of SuperValu in Bantry with intention to buy food for takeaway. I was looking for 1 or 2 BLT sandwiches. As we were almost at the counter, Ronan Dempsey, Manager approached us asking whether we have masks with us.

I said "I don't, I'm exempt." Ronan asked "have you an exemption?" I said: "I do indeed, yes." Ronan than said: "yeah, I'll take it there." requiring to see proof of exemption. I explained to Ronan that I object to the data processing under Article 18(1)(d) of GDPR until such time that he demonstrates compliance with the GDPR. And I asked Ronan "can you demonstrate compliance with the GDPR?" Ronan than said he will call the Gards (sic). I asked Ronan if there was a crime committed. Ronan confirmed there was no crime committed. I told Ronan that him calling the gards would constitute victimization. When I went on to explain to Ronan that his behaviour is contrary to Equal Status Act 2000, Ronan said "I'm gonna stop you there! You can clarify that with the Gards." I told Ronan this is a civil matter. He said he will ask me again for the proof of exemption, and if I don't show it to him to wait for the Gards. As Ronan's threats intensified, I told Ronan I am claustrophobic and that I am not allowed to wear a mask, with a view to put an end to his harassment. Ronan insisted he has to see my proof of exemption saying something along the lines "I'm not asking you to tell me that, I'm asking you to show me a disability card or a proof of exemption, or a medical cert, doesn't have to contain medical data." So I asked Ronan "what do you want to see in the proof of exemption then?" Ronan insisted to see a disability card.

I asked Ronan "what is a disability card?" Ronan says "a disability card to show that you have a disability" I asked Ronan if it is the same as the disability card used for parking a car. Ronan said it's not that card. I explained to Ronan that I have a letter of exemption from my GP and that my letter of exemption contains health data. Ronan wanted me to get another letter from my gp that doesn't contain health data. Ronan said the proof they require should say "medical illness" Ronan said he requires the proof of exemption under Section 24(a) of the Health Act. Ronan went on again "I'm gonna stop you now, if you want to argue that's no problem" Having orally exercised my right under Article 15 of GDPR, requesting a copy of the CCTV footage, Ronan went again "I'm gonna stop you now!" After transmitting my email address to Ronan for the purpose of the Subject Access Request, and having offered to repeat the email address for convenience so that he can write it down, Ronan asked me to go with him to the front of the shop for him to take my email in writing. I explained to Ronan that I am going to get sandwiches. Ronan said "I'm gonna ask you now, you have to wear a mask or have a proof of exemption to continue shopping here. I asked Ronan "Would you like to serve me outside?" Ronan said "no no." I asked Ronan "Are you refusing service?" Ronan confirmed he is refusing service on the basis that I haven't provided proof of exemption. I asked Ronan again: "Would you like to serve me outside?" Ronan said I should place an online order and they will have the order ready for me for collection tomorrow. I told Ronan "I just want a sandwich basically".

I told Ronan that if he would like to provide reasonable accommodation under the Equal Status Act 2000, I'm happy to be served outside. Ronan said: "I'm offering you.." So I said "I would like 2 BLT's please, I will be waiting outside the door." Ronan said "I'll have it ready there for you 2 o'clock tomorrow." I told Ronan that is very unreasonable. Ronan said "It's not really." Ronan went on to say "I'm happy no problem providing service" although he verbally stated he is refusing service only few minutes ago. I told Ronan "you just refused service". Ronan said "no, I didn't." After I reminded Ronan verbally confirmed he refuses service, Ronan said "I'm refusing service in the business today, but I'll provide service in line with our 48 hour waiting policy and home delivery. I'll make an exemption in your case and I'll do it in 24 hour for 2 o'clock tomorrow." I told Ronan "that's very unreasonable. That's not reasonable accommodation." Ronan said: "I'll ask you again to leave". "I ask you to leave the business unless you can provide me with proof of exemption" Ronan stated that otherwise he will call the gards and let them deal with the proof of exemption. I told Ronan "So I believe the Gards will be asking for my proof of exemption under Part 5 of Data Protection Act 2018" Ronan said "I'm sure that's what it is". I informed Ronan that we are both recording. Ronan said he doesn't give me permission to record within a private building. I told Ronan consent is not required as the recording is for evidence in a court of law and that tampering with evidence is a criminal offence under Section 17 of the Criminal Justice Act 2011. Ronan asked me "so where do we go from here?" I told Ronan "I just want a sandwich. I'm hungry, that's all." Ronan said he will provide it for me tomorrow. I told Ronan that's not good enough because we are hungry now. Ronan said he is not there to argue with anybody and that he is there to protect everybody. I asked Ronan if he is actually protecting anyone, I told Ronan "I believe we would have been out by this time if we just got 2 sandwiches and walked away" Ronan said "100%!" So I told Ronan that effectively his action endangered people more. Ronan said "I'm finished this conversation. I'm gonna ask you to leave!" I said "yes, we will leave" and headed towards the exit. Ronan followed me closely to the exit as if he was a Door Supervisor within the meaning of the Private Security Act 2004.

This complaint refers to me being treated less favorable than others with different disabilities would have been, in that it was required of me to show a medical certificate in order to be provided service or even be allowed on the premises, while someone with a different disability would have not been required to present a certificate to be allowed on the premises or be provided service or reasonable accommodation.”

CA-00049513-002 – pertains to 11/01/2022 and 12/01/2022 – allegation of harassment - WRC claim filed on 04/04/2022

“This complaint refers to Harassment and Coercion. As SuperValu had a note at the front door that said "face coverings should be worn in shops...""...not suitable for under 13s or those who have difficulty wearing them", SuperValu was in breach of its own policy. That policy didn't require that proof of exemption is a condition for service, as it couldn't have, due to the fact that it would constitute discrimination when compared to requirements imposed on others with a different disability. However, Ronan Dempsey took it upon himself to humiliate me, coerce me (within the meaning of Section 9 of the Non-Fatal Offences Against the Person Act 1997) and harass me for exercising my right under Section 18(1)(d) of GDPR. Ronan Dempsey escorted me to the exit as if I had committed a criminal offence. Having asked in the ES1 form "is there any reason why I shouldn't invoke Section 43 of the Equal Status Act 2000?" The question, as well as all other questions remain unanswered. When I asked Ronan "you're not following me, are you?", Ronan said "no,no, I'm walking in my own business".

Few seconds later, observing Ronan was walking me out with a view to intimidate me, I reminded Ronan that his action is Coercion under Section 9 of the Non Fatal Offences Act 1997 is punishable by up to 5 years imprisonment.

Having gone back the next day to obtain the Respondent's details for the purpose of the ES1 form, as I told Ronan's colleague that I require the name and address for the purpose of a legal claim, so his colleague said she will get Ronan as she doesn't know the details. Ronan arrived, I explained to him I'm looking for the name and address of the company. Ronan asked me "do you have a mask?" Ronan asked me to step outside because I have no mask again. I agreed to obtain the details outside. I asked Ronan "will you give me the details outside?" Ronan said "no problem, I'll follow you outside". Ronan said all the details are online on their website. Ronan refused to provide me with the name and address of the company. I asked Ronan if I could obtain the company's registration number from the receipt. Ronan said he's calling the gards. I asked Ronan if he's trying to intimidate me. Ronan said "not at all, you're trying to intimidate me" I told Ronan I'm not trying to intimidate anyone, and that I'm just trying to obtain the name and address of the company. Further to his intimidation technique Ronan spoke or pretended to speak to a garda by his first name, saying "Hi [Name Redacted]" I had to call Gardai (112) and enquire whether I am required to wait for them outside the store or not. It was confirmed to me by 112 operator (Garda) that no Gardai were deployed and that I am not required to wait.”

CA-00049545-001 – relates to 12/01/2022 – allegation of victimisation - WRC claim filed on 06/04/2022

Submission, as per his complaint form:

“This complaint is in relation to Victimization that occurred on 12th of January 2022 in SuperValu Bantry, when having requested the name and address of the respondent for the purpose of the requirement by Page 1 of the ES1 form for complaint CA-00049513, and having the ES1 form in my hand and having answered respondent's employee question "what do you need the name and address of the company for?" with "I'm suing you for discrimination for an incident I had here yesterday", I was refused to be given the name of the company and I was threatened by manager Ronan Dempsey, again, with "the Gards", for seeking justice.”

The Complainant played the audio tape from 11/01/2022, which was 7 minutes and 49 seconds in length, entering it into evidence. On it, he can be heard interacting with Mr. Ronan Dempsey, supermarket manager of the Respondent company - confirming that he is not wearing a mask, alleging he is exempt, stating that he has a letter of exemption, not producing it, quoting legislation on GDPR, asserting that he has claustrophobia, quoting other legislation, engaging conflictually, seeking to make a GDPR request for CCTV orally, seeking to be served outside, being displeased at the proposed wait time of 24 hours and late in the encounter, revealing that he is recording the interaction.

The Complainant gave evidence that he was exercising his rights with regard to GDPR, that this involved sensitive medical data, that he was “shifting the burden of proof onto the Respondent”, that how he had been treated was contrary to his dignity against the Universal Convention on Human Rights, that he told the supermarket manager that he was claustrophobic and asked him to serve the Complainant and his friend outside and that the supermarket manager had responded: “Sure, I’ll serve you outside in line with our shopping policy” (48 hours, then reduced to 24 hours). The Complainant said that he believed that was “humiliating to say the least”, “the epitome of humiliation” and asserted that “it was humiliation that [the supermarket manager] sought.”

On cross-examination, by Mr. Jeff Hitchmough BL

It was put to the Complainant that he had a letter from Dr. Thomas O’Donnell dated 17/11/2020, which he confirmed, and that the incident took place on 11/01/2022, which meant he had that letter for over a year. He confirmed that he had it with him, in his possession, at the time of the incident. He concurred that the letter proves exemption but said that he objected to the processing of his medical data on the basis of GDPR. It was put to him that it was analogous to showing ID if you are buying alcohol and that the Respondent was not a controller or processor of data – no retention, no processing, no using of the data, other than merely checking that the person is exempt. The Complainant said that the regulation which we have transposed into law has a caveat for processing special categories of data. The Respondent put the point that it is permissible to ask for proof of exemption when protecting against serious cross-border threats to health.

GDPR Discussion

There followed a discussion on GDPR wherein the Respondent’s representative reiterated that they are not data processors because they are not storing the data.

The Complainant responded that he was seeking to rely on the regulation rather than the domestic legislation, that where there are discrepancies between the two, the regulation is the ‘superior legislation.’ The Complainant said that the definition of processing includes the word ‘use’ and that it ‘is not up to us to restrict the meaning of what it means to be a controller or processor.’ He said that derivations are subject to technical or operational measures and he asked the supermarket manager to prove that the Respondent has technical or operational measures in place, for a customer that is not a customer in a medical setting.

The Complainant also disputed that it was analogous to an age card “because an age card does not contain special category data” and that this pertains to disability.

Resumption of cross-examination:

The Complainant stated that he had asked the doctor not to write claustrophobia on his letter of exemption.

It was put to him that he did not provide written proof of exemption. The Complainant disputed that he had not provided proof stating that he had verbally told Mr. Dempsey that he was claustrophobic, that he was not required to provide written proof, that what was asked for was “some sort of proof.”

Again, it was put to him that he did not provide proof of exemption, and that if his goal was to go into the shop and to get a sandwich, the easiest thing to do, the reasonable thing to do would have been to provide his letter of exemption. The Complainant disagreed with that. He described the HSE sign on the front door as being ‘generic’, the assertion being that it was insufficiently signposted for customers.

The Complainant said that he had been the in shop a week earlier, shopping for a friend of his who was sick, and there was a different manager (Adrian, 30’s, glasses, beard) and he said that there had been no problem, i.e. that he had been allowed to walk around the store, shop and not wear a mask.

It was put to the Complainant that he was setting up claims, that the easiest thing would have been for him to show his exemption, and bearing in mind that he was recording in the store. The Complainant outlined that he recorded on every single premises that he had entered, during the period of government restrictions.

Some of his other claims were put to him, and that he had been unsuccessful in them:

·       Waterford city - ADJ-00035915 – Burzza – unsuccessful

·       ADJ-00034951 – Inchydoney Hotel – very similar fact pattern – unsuccessful

·       ADJ-00035361 – O’Callaghan – Cork city – similar fact pattern

·       ADJ-00035311 – Bistrovia, Day-to-day news - unsuccessful

The Complainant disagreed. He said that each of those cases were dealt with on their merits, and that in none of those cases was his disability disclosed. He said that on the 11/01/22, he had disclosed the fact that he was claustrophobic.

He was asked if he had other cases pending. He said that he had none pending, but he wished that he had more cases. He said that he believed that discrimination in Ireland is a serious issue, and something must be done; that it should be highlighted; that it is contrary to the European Convention on Human Rights; that Ireland should have sought a derogation under Article 15(3) of ECHR, that reasonability and proportionality matter; that we would have to give notification under Article 15(3) to the Secretary General of the Council of Europe where a Member State seeks to avail of a derogation. He said that it is required to ‘name the rights’ and have a supervisory body, that any derogation has to be necessary and proportionate. He also referenced Joelle Grogan’s work: “Impact of Covid-19 Measures on Democracy and Fundamental Rights.”

It was put to him that: “It’s fair to say you have a grievance with Ireland’s application of the law.” The Complainant responded that he thought this may need to go all the way to the European Court of Human Rights. He said that he feels strongly about violations of human rights. It was put to him, that to uphold that, he brought discrimination claims.

He was asked whether he had a disability card. He queried if that was a blude badge (for parking) on a car. He said that he did not.

It was put to him that he was not aperpetual claimer of disability in different cases. The Complainant queried “what proof” that he was required to provide and said that the supermarket manager “couldn’t tell me.” He said that staff had to be provided with training, and that this was something the WRC had repeatedly upheld, in relation to disability cases.

It was put to him that he returned on 12/01/2022, not wearing a mask again and that he was asked for an exemption again. He said that he couldn’t remember in relation to the 12th, but that he kept his letter of exemption in his wallet. It was put to him that he showed up on the 12th seeking information about the company, so he could sue, and that this goes to him setting up these claims.

The Complainant said that he thinks he rang the shop in advance of showing up. It was put to him that he showed up again without a mask. He was asked whether he recorded these exchanges. The Complainant said that he did. It was put to him that it was not submitted in evidence. It was put to him that on the audio on 11/01/2022, that he was “very vocal”; that he had been quoting GDPR and the Equal Status Act as he was leaving. It was put to him that he was weaponising the Equal Status Act, unfortunately for O’Keeffe’s Supermarket. The Complainant said: “It’s the law. Don’t break the law if you don’t want to pay. Don’t violate human rights.” He said that it was about “decency – that’s all this case was about.” “It’s about upholding the law, upholding human rights.” He opined that: “Discrimination is a criminal offence.” It was put to him that he was setting up these claims.

The Complainant was asked again why he had got the letter of exemption in the first place – in light of the fact that he was drawing a distinction between this case and the other cases he had taken in which he had not revealed a disability. He said that he had got it for work, that his employer was requiring people to wear a face covering, but that he had “technical and operation concerns”, that there was one laptop and all employees had access; that he felt there was a stigma to claustrophobia and less of a stigma with regard to anxiety; and that the stigma with every disability is different. He said that severe anxiety on wearing a face mask is the effect that claustrophobia has on him. He said that he asked his doctor to write anxiety rather than claustrophobia on his letter of exemption.

The Adjudication Officer, enquired of the Complainant at the hearing, as to whether he was involved in strategic litigation, which he denied.

The Complainant’s Final Remarks

The Complainant submitted that special category data under s. 58 Data Protection Act 2018 is akin to a medical practitioner act - closed door room where two people, a medical professional and a patient, exchange special category data relating to the patient.

He submitted that what occurred is prohibited under Art 9(1) 2016/679, that the Respondent failed to meet any of the exemptions under 9(2) of the GDPR in order to give them some sort of legal basis for processing that type of data; that the Respondent failed to put forward any copy of any policy with regard to processing the data of people with disabilities; and that it had a requirement of their customers to prove they have a disability. He said that there is no defence whatsoever available to the Respondent and that the humiliation that occurred on that date carries wider implications and effects to this day. The Complainant appeared distressed, as he concluded his final comments.

The Respondent made written submissions in advance of the hearing.

As per its written submissions:

1.     The Complainant has referred a complaint under the Equal Status Act 2000 as amended alleging that the Respondent discriminated against him on the basis of disability by declining to serve him at its supermarket in circumstances where the Complainant refused to wear a face mask while indoors on the premises during Covid-19 restrictions. In addition, the Complainant has also complained that the manager, Mr. Ronan Dempsey, coerced and harassed him while he was being escorted from the Respondent's premises.

2.     The Respondent denies the Complainant's allegations in full and submits that the Complainant failed to set out a prima facie case that he was discriminated on the basis of disability, that his case is manifestly ill founded and is without merit and bound to fail.

3.     The Respondent further denies that it or any of its employees coerced or harassed the Complainant and state that the Workplace Relations Commission is not the correct forum for adjudication on matters alleged to have occurred pursuant to sections 9 and or 10 of the Non-Fatal Offences Against the Person Act 1997.

Factual Background

4.     On or about the 11 of January 2022, at which time the wearing of face masks on retail premises remained compulsory under Covid-19 restrictions, the Complainant, together with an associate, entered the Respondent's supermarket "O 'Keeffe's SuperValu Bantry". Neither the Complainant nor his male associate were wearing a face mask. The Complainant approached the store's deli counter and were met by Mr. Ronan Dempsey, the manager of the supermarket, when the Complainant and his associate were not in the vicinity of other customers. Mr. Dempsey politely asked both men how they were and asked them if they had face masks with them. Both men replied that they did not, so Mr. Dempsey asked each in turn if they had exemptions in line with Government regulations. The Complainant and his associate replied that they had exemptions, at which Mr. Dempsey asked if he could see a copy of their exemptions in order that Mr. Dempsey could reasonably satisfy himself that they were indeed exempt. The complainant and his associate failed to provide proof of exemption despite being asked to do so by Mr. Dempsey.

5.     During this exchange, Mr. Dempsey was asked why he was "challenging" the Complainant to which Mr. Dempsey replied that he did not know either of the men and was simply checking as to why they were wearing no mask in the supermarket on the day. The Complainant stated that he would not be showing any exemption and stated it was his right not to do so under GDPR legislation. He then asked what type of confirmation would be needed to which Mr. Dempsey replied that he would need to provide a disability card, autism identification, sunflower lanyard or doctor's certificate stating and exemption or something similar which was reasonably satisfactory. The Complainant began quoting legislation and stated that Mr. Dempsey was in contravention of same for asking for such details and argued that his rights were being infringed.

6.     Mr. Dempsey then told them that the Complainant that he and his associate had three choices and that he was not going to argue with them due to the Complainant's tone becoming heated. Mr. Dempsey felt intimidated at this point. He said that the two men could provide proof of exemption and go about their day as they were legally entitled to do so, they could remove themselves from the premises as they were not following store policy regarding Covid-19 regulations or they could put on a face mask and continue about their day. The Complainant then told Mr. Dempsey that he had an obligation to provide a suitable alternative if he was refusing service that day. Mr. Dempsey told the Complainant that he was welcome to use the Respondent's home delivery service if he was not willing to comply with store policy. The Complainant asked that sandwiches be delivered to his car outside the store straight away. Mr. Dempsey replied saying that this was against the shop's 48 hour delivery policy for all home delivery, but that he would reduce this to 24 hours and deliver any shopping to the Complainant's home the following day. The Complainant said that this was unacceptable and that he would be continuing to shop instore that day.

7.             At this point, the Complainant stated that he had been recording the entire exchange on his phone, at which Mr. Dempsey told him that he was removing consent for both men to be on the premises on that day as they had still not provided proof of exemption. Both men then made for the front of the shop towards the checkouts. Mr. Dempsey was also moving independently towards the front of the supermarket at this time when the Complainant stopped him and told him he was not to escort them out. Mr. Dempsey stated that he was not escorting and was simply moving to the front of the store. The Complainant then stopped Mr. Dempsey again and began to quote legislation, in an aggressive manner, which he felt Mr. Dempsey was in contravention of. This occurred within full view and earshot of other customers in the supermarket at the time, The Complainant's associate had left at this point. Mr. Dempsey told the Complainant he was to leave the supermarket immediately or the Gardai would be called. At this, the Complainant left the store.

8.     On or about the 12th of January 2022, the following day at approximately 11.35am, the Complainant returned to the supermarket seeking details so that he could sue the Respondent. On this occasion also, the Complainant was not wearing a mask. When asked by (NB) duty manager, if he was ok, the Complainant stated that he "needed [the Respondent's] registered company name and address ". (NB) asked him what he needed those details for, and he replied he was going to 'sue for discrimination " regarding "an incident that happened yesterday ". (NB) asked the Complainant to wait while she went to get Mr. Dempsey.

9.     Upon his arrival, Mr. Dempsey politely asked the Complainant if had a face mask. The Complainant stated that he did not. Mr. Dempsey asked for proof of exemption and the Complainant stated that he would not be providing any. Mr. Dempsey stated that he did not consent to being recorded by the Complainant and asked him to leave the supermarket or the Gardai would be called. The Complainant said he was not leaving so Mr. Dempsey called the Gardai. As Mr. Dempsey spoke to the Gardai on the telephone, the Complainant aggressively interrupted him in relation to the supermarkets fire certificates.

10.  Following the call to the Gardai, Mr. Dempsey informed the Complainant that he was waiting for the Gardai to arrive and reiterated that the Complainant would have to leave the store. The Complainant then proceeded to take photographs both inside and outside the supermarket. When the Complainant did move outside, he continued to shout random references to "data" and stated that the Respondent was "in breach of its own policy" and it was "discriminating against him ". Mr. Dempsey waited for the Gardai, who could not attend immediately, to arrive and contacted his general manager. After a number of minutes, the Complainant shouted at Mr. Dempsey that he was not waiting for the Gardai and was leaving himself to go to the Gardai to make a Complaint.

Forms ES.I & ES.2

11. By Form ES. 1 dated the 4th of March 2022, the Complainant claimed that he had been treated unlawfully by "harassing me or allowing me to be harassed" contrary to the Equal Status Acts 2000-2015 on gthe grounds of disability. He alleged that he had been followed around without lawful authority by Mr. Dempsey with a view to compelling the Complainant to leave the store; which is something the Complaint alleged he had a "lawful right not to do... due to my disability precluding me from wearing a mask. At section 6 request for further information on the said Form ES.I, the Complainant stated:

"I acknowledge a manager's obligation to remind customers to wear a mask, as per SI 296/2020... '

He then goes on to allege that there was no law that "encourages harassment of customers due to disability (claustrophobia in this case) [who] cannot wear a mask. The Complainant then asks variously why he should not invoke section 43 of the Equal Status Act 2000, why he should not invoke sections 9 and 10 of the Non-Fatal Offence the Persons Act 1997. The Complainant also asks for a copy of Mr. Dempsey's Private Security Authority Licence and asks the Respondent to prove that it is not vicariously liable.

12. In reply by Form ES.2 dated the 28th of March 2022, the Respondent noted that the Complainant came into the store on the 11th of January 2022, not wearing a mask. It sets out that at the time face coverings in retail settings were mandatory in accordance with SI 296/2020. The reply continued that the store manager, who was the responsible in the premises as defined in SI 296/2020, approached the Complainant, and asked him why he was not wearing a mask and to which the Complainant stated that he was exempt. The Respondent then notes that when asked for proof of exemption, the Complainant would not provide it. The Respondent then sets out that the Complainant entered the store again on the 12 of January 2022 and was not wearing a mask. The Complainant requested details on who to sue and informed the store manager that the Complainant was recording him. The store manager did not consent to this and called the Gardai who could not attend immediately.

13. The Respondent set out its reasons acting as such as follows:

"Our store policy at the time was that face coverings were required to be worn. The store manager took reasonable steps to remind you of your requirement to wear a face covering.

It was store policy to ask for proof of exemption, but we did not require any specific medical information when doing so.

We had a duty to protect our employees and all our customers and have done this to the very best of our ability for the last 2 years.”

14. The Respondent then sets out the normal practice in such a situation as follows:

"Normal practice at the time in question is that customers under Government guidelines and our store policy shopped wearing masks which were mandatory. Any customer not wearing a mask was politely asked to do so or to provide proof of exemption.”

15. The Responded concluded:

"At the time, all customers were required to wear a face covering. Any customers who entered the store without a face covering were approached and reminded of their obligations to do so.

All customers and staff who had an exemption from wearing face coverings were asked to provide evidence of this. Again, no specific medical information was requested, we merely required confirmation that the person was exempt due to a reasonable excuse.

Therefore, you were not treated less favourably than any other customer.

16. On or about the 4th of April 2022, the Workplace Relations Commission received the within complaint CA-00049513 from the Complainant.

Other Claims of this Nature made by the Complainant

17.  The Complainant has made a number of similar complaints of this nature to the WRC in the recent past. He admitted on affirmation in ADJ-00035915 George-Calin Breban v Deli Wine John Street Limited Burzza that he had filed six or seven other claims with the WRC for adjudication of which, presumably, the within matter is one. The Adjudication Officer in that case stated of the Complainant:

"He admitted that he has recorded all interactions he has had in other establishments in relation to the issue of mask wearing and that he has filed six or seven other claims with the WRC for adjudication.”

18.  In the Burzza case, the Complainant alleged he was discriminated against on the basis of a provision of a service. He went to the respondent restaurant and sat outside with a number of friends. Just before their food arrived, the Complainant went inside to wash his hands and asked the barman inside where the restrooms were. The barman asked him if he had a mask to which the Complainant told him "I'm exempt". He was also asked by a waitress if he had proof of exemption. The Complainant alleged that he did have his medical certificate with him, but he refused to show it to her. Instead, the Complainant said that under Article 9 of GDPR, the waitress could not process special category data. The waitress explained that it was a policy of the restaurant that people had to wear a mask indoors. The Complainant alleged that the respondent failed to provide reasonable accommodation to him as it did not having washing facilities outdoors to allow him to wash his hands before eating. The Complainant further alleged that being asked to disclose his medical conditions or certification deprived him of his dignity.

19.  During the hearing, the Complainant produced a medical certificate from a Dr. Thomas O'Donnell of Dunmanway Medical Centre, dated the 17th of November 2020 which set out "This is to certify that the above named suffers from severe anxiety on wearing a mask". However, the WRC Adjudication Officer noted that:

"The Complainant, on his own admission, refused to disclose to the Respondent that he had a disability and refused to produce his medical certificate. The only information he gave them was that he was exempt.”

20.  The WRC was satisfied that the Complainant had failed to establish a prima facia case of discrimination on grounds of disability and thus the complaint failed. The Adjudication Officer held that if someone seeks to rely on an exemption in a discrimination claim on grounds of disability, they must disclose to the person/entity at the material time and at the very least, the evidence of their exemption. She stated:

"Based on the medical evidence adduced at this hearing, I find that the Complainant is suffering from a disability however the Respondent could not have discriminated against him on the grounds of that disability because they were not informed of it at the material time. For the Complainant to state "I am exempt" is not sufficient. There are other grounds set out in S.I. 296/2020 which may exempt someone from wearing a face covering that do not amount to a disability. If someone seeks to rely on an exemption set out in S5 (a) (i) and/or (ii) in a discrimination claim on grounds of disability, they must disclose to the person / entity at the material time and at the very least, evidence of their exemption.”

21.  The Complainant was also unsuccessful in another factually similar case of ADJ00034951 George-Calin Breban v Inchydony Island Lodge and Spa Limited V. Inchydony Hotel. In that case, the Complainant alleged that he was discriminated against on ground of his disability in that the respondent failed to serve him ice creams and coffee at an outdoor food truck owned by the respondent when he refused to wear a mask. The respondents denied all complaints and submitted that it was following government guidelines regarding mask wearing at the time of the incident and further that the Complainant did not disclose his disability at the time. It was submitted by the respondent that when the Complainant was asked by the general manager to put on a mask, the Complainant refused, saying he was exempt. When asked to produce proof of his exemption or the nature of his disability which restricted his mask wearing, the Complainant would not show any evidence nor disclose the nature of his disability.

22.  At the hearing of Inchydony Hotel, the Complainant again produced the above mentioned medical certificate of one Dr. Thomas O'Donnell dated the 17th of November 2020. The WRC noted that it was significant that this was the first time that the respondent had seen the certificate, given that the Complainant had been asked for it at the material time. The WRC was satisfied that the Complainant did not disclose at the material time, and further stated that the mere declaration by the Complainant of exemption without offering further information as to the nature of the exemption "effectively absolves the Respondent from an allegation of discrimination under the Acts. " The Adjudication Officer stated:

"The Complainant accepted that he did not show the Respondent the certificate on the day, nor did he show it to the food truck staff and neither did he disclose the nature of his disability. It is a corollary of equality law that the person who is allegedly engaging in prohibited conduct against a person with a disability must firstly be aware of the nature of the disability by a complainant, so as to have an opportunity, at the very least, to reasonably accommodate the disability. The mere declaration by the Complainant of exemption without offering further information as to the nature of the exemption effectively absolves the Respondent from an allegation of discrimination under the Acts. Having heard submissions and evidence on this issue, I am satisfied that the Complainant did not disclose his disability at the material time when ordering goods from the food truck.”

23.  The WRC found against the Complainant and stated:

"The non-disclosure of disability and the pre-preparation of audio-visual equipment defeats any assertion by the Complainant that he set out to seek reasonable accommodation from the Respondent. After hearing the relevant evidence and submissions in this case, I find that the Complainant has not established a prima facie case under section 38A of the Acts that (1) he was discriminated against in the denial of goods and services by the Respondent, nor (2) that he was denied reasonable accommodation for his disability.

The Law

24.    In addition to the foregoing decisions of the WRC which the Respondent submits are factually similar if not identical to the within complaint, section 3 of the Equality Status Acts provides as follows:

"(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 exists,

(ii)

(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”)”

25.    Section 2 defines disability as:

“disability means

(a)              the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person 's body,

(b)              the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)              the malfunction, malformation or disfigurement of a part of a person’s body,

(d)              a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)              a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”

26.    Section 4 provides with regard to "reasonable accommodation

"(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)          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.

(3)          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.

27.    Section 38A provides in relation to the burden of proof:

"(l) 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.”

28.    It is for the Complainant to establish a prima facie case of discrimination. He must first show that he had a disability at the material time and then show that he was subject to discriminatory treatment by reason of his disability. In Graham Anthony & Company Limited v Mary Margetts EDA 038, it was stated:

"The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

29.    It is submitted that the knowledge of the Respondent of the Complainant’s particular disability is essential to assessing whether the Respondent has fulfilled any obligation regarding the reasonable accommodation of the Complainant. In the context of the employer and employee relationship, Bolger, Bruton and Kimber (para 7-82) state:

"The knowledge of the employer of the employee 's particular disability is crucial to assessing whether an employer has complied with its obligation of reasonable accommodation.” (Emphasis added)

Discussion

30.    The Respondent submits that the within complaint issued by the Complainant constitutes just one of a number of similar complaints that have been heard or are pending before the WRC. The Respondent further submits that the within complaint contains facts that are so similar to those found in Burzza and Inchydony Hotel that a particular modus operandi on the part of the Complainant ought to be inferred. Indeed, under affirmation in Burzza, the Complainant admitted that he has filed six or seven other claims with the WRC for adjudication. Furthermore, it is the Respondent's view that it was deliberately targeted by the Complainant who entered the store at the material time knowing that he would likely be asked by the store staff to either wear a face mask or produce an exemption, at which point he would claim discrimination against.

The Respondent submits that on both the 11th of January and the 12th of January 2022, when the Complainant entered onto the Respondent's premises, he was asked why he was not wearing and/or was asked to wear a face mask in line with Government Covid-19 regulations on the wearing of face coverings in retail settings and the Respondent's policy with regard to same. On each occasion, the Complainant said that he was exempt from wearing a face mask and refused to wear one. Further, on each occasion he failed to set out what his disability was, or to provide any evidence of his exemption to the Respondent. This is despite the fact that on the 11th of January, Mr. Dempsey asked for and set out what evidence of exemption would be acceptable. Mr. Dempsey again asked for proof of exemption on the 12th of January when the Complainant returned, aware of the Respondent's policy regarding the wearing of face coverings, seeking details to sue. Despite this knowledge, the Respondent still did not provide proof of exemption and refused to wear a face mask.

32.  It appears that the Complainant had a certificate from a Dr. Thomas O'Donnell, dated the 17th of November 2020, setting out that "This is to certify that the above named suffers from severe anxiety on wearing a mask". Despite this, and similar to the Burzza and Inchydony Hotel cases, the Complainant failed or refused to show this to the Respondent at the material times so as to evidence his purported exemption to wearing as face mask.

33.  As set out above in the Inchydony Hotel case the WRC stated:

"It is a corollary of equality law that the person who is allegedly engaging in prohibited conduct against a person with a disability must firstly be aware of the nature of the disability by a complainant, so as to have an opportunity, at the very least, to reasonably accommodate the disability. The mere declaration by the Complainant of exemption without offering further information as to the nature of the exemption effectively absolves the Respondent from an allegation of discrimination under the Acts.”

34.  In the present case, all the Complainant did was merely declare that he was exempt without offering further information as to the nature of the exemption and at no point was the Respondent made aware of the nature of the Complainant's alleged disability. In consequence, it is submitted that the Respondent should be absolved from the within allegation of discrimination under the Equal Status Acts.

35.  Notwithstanding the Respondent's contention that the Complainant has failed to adduce facts from which it could be inferred on the balance of probabilities that discrimination occurred and thus his complaint should be dismissed, the Respondent submits that it did in fact make efforts to reasonably accommodate the Complainant in line with its store policy by offering to provide the Complainant with next day delivery of its home delivery service.

Recordings of the Incidents by the Complainant

36.  It is submitted that any purported phone recordings of the incidents complained of and compiled by the Complainant are not admissible at the hearing of this complaint as any such recordings were taken without the consent of the Respondent, Mr. Dempsey and other staff members of the Respondent. Further, any alleged evidence contained therein can be given viva voce by the Complainant and witnesses for the Respondent under oath or affirmation.

37.  It is submitted that any such recordings form part of the modus operandi employed by the Complainant as is apparent from the Burzza and Inchydony Hotel complaints.

Allegations of Coercion and Harassment

38.  The Respondent absolutely refutes and submits that any allegations made by the Complainant with regard to coercion and/or harassment as set out in the complaint are manifestly unfounded and bound to fail and therefore do not require substantive analysis. Without prejudice to the foregoing, if the said allegations were to reach the threshold as set out in sections 9 and 10 of the Non-Fatal Offences Against the Person Act 1997, which the Respondent denies entirely, it is submitted that the WRC is not the correct forum to hear such complaints.

Conclusion

39.  It is therefore submitted, by reason of the Complainant failing to disclose the nature of his disability or to provide proof of exemption from wearing a face mask, that he has failed to make out a prima facie case of discrimination against the Respondent and thus the Complainant's claim should be rejected.

40.  The Respondent also submits that there has been no discriminatory treatment and that the Respondent provided reasons for its actions as set out above. The Respondent therefore requests that this Tribunal reject the complaint.

Evidence of Mr. Ronan Dempsey - Store manager – O’Keeffe’s Supveralu, Bantry – Witness for the Respondent

Mr. Dempsey gave evidence on behalf of the Respondent. He outlined how he had worked in the business since he was 19 years old, that he had worked across the business, in a different location and in different jobs. He said that for the last 2.5 years, he had been the store manager.

In relation to the store policies, he said that they were compliant with the regulations which were in place, that posters from the HSE were posted around the store and that he had read the relevant information (‘a pack’) supplied by Musgraves.

He said that the store had hired security, that there were hand sanitising stations. He explained that upwards of ten (10) regular customers had exemptions. He gave examples of someone with a sunflower lanyard, who came in and disclosed that they were exempt; and another lady, who came in with two young children and a medical certificate. He said there were a number of people in similar situations.

He said, of the Complainant: “I’m there [in the shop] 45 hours a week – I had never laid eyes on him.”

He said that the Complainant, in his evidence, said that he had previously spoken to another manager (“Adrian”). The witness said: “We don’t have anyone who fits that description.” He said: “I don’t know of an Adrian or anyone who fits that description.”

It was put to him that he had heard the audio, and that he was broadly accepting of what was on the audio? He explained that it was about 1 pm, that he was going for his own lunch, that he was getting a wrap at the deli counter in the store, when he saw two men approaching wearing no masks. He said that there was no security on the door on the day, that at that point in time, the numbers were not as bad in Bantry. He said that the other man (the Complainant’s friend) raised his phone and that Mr. Dempsey said: “I don’t consent to be recorded.” He said that he greeted them, asked them if they had masks, they said “No.” He said that they were quoting legislation, that he was “not a solicitor, not a barrister”; that he was there to “protect my team and the wider customers” including the Complainant, to make sure the store was compliant, that he was following the legislation. He said that government guidelines were in place, that they were changing on a regular basis, that public transport had face coverings, then no face coverings. He said that face coverings were mandatory, at that stage (11/01/2022).

He said that he asked the Complainant if he had an exemption and he said that he did. Mr. Dempsey said that he asked him if he could see it and the Complainant said “No.” He said that the Complainant quoted legislation under GDPR. He said that if they didn’t have proof of exemption, he might have to call “the guards.” He said that exemptions had all been dealt with amicably.  He said that he had “a couple of experiences with customers who didn’t have exemptions and who got aggressive – they didn’t quote legislation or anything like that.” He said that it was “all about the customers”, that “obviously, he wants a service, we’ll provide it as best we can.” He said that the store was offering “48 hours – home delivery.” He said that when the pandemic occurred, the shop started doing about 140/150 home deliveries per week and about 140 click and collect. He said that pre-covid, they would have had about 30 per week, that it exploded in covid and they had about 30 per day. He gave evidence that they hired a new team, invested a new system and that meant a 48 hour policy, otherwise they couldn’t provide a service to anyone. He said that they had customers, people isolating with disabilities and the store dropped food outside their door, as requested.

He said that the Complainant “told me I was being unreasonable.” He said that the “conversation was dragging on at this point.” It was a “long time”, and the Complainant was quoting legislation.

He said that he gave the Complainant three options – that he could continue shopping if he could demonstrate proof of exemption, or he could wear a mask and continue shopping or he could leave the business.

He said that there was further discussion about the gardai and legislation and he asked the Complainant to leave.

He said that he picked up his own wrap, headed up to the front of the store to pay for it, and that the Complainant got aggressive about Mr. Dempsey “following him.” He said that he told the Complainant that he was not following him, he was “going up to the front of the shop to buy my lunch.”

He said that the following day (12/01/2022), the Complainant again showed up at the shop, not wearing a mask and said that he needed ‘your company details so I can sue you.’ He said that he told him he was not having a conversation with him, that the Complainant had a ‘big form’ and was trying to write his name down. This time, the gardai were phoned to attend. He said that the Complainant was again aggressively quoting legislation. He said that the Complainant stood outside shouting aggressively at him about posters (HSE). Mr. Dempsey said that he told the Complainant: “I’m not engaging with you.”

In terms of exemption, he clarified that the supermarket required “visual confirmation – some reasonable effort made to provide proof of exemption.”

He said that the Complainant was even more aggressive the second day.

On Cross-examination by the Complainant:

Mr. Dempsey confirmed that he was working on the day in question – 11/01/2022, as store manager. He outlined what was involved in his role. He outlined that in Covid, the store hired security, a person who managed the flow of customers to the business. He explained that person was a former garda who had a PSA license.

The Complainant asked whether the store had a policy in relation to disabilities. The witness outlined the store’s compliance with requirements re: access and planning. The Complainant asked in relation to the car park and disabled parking. The witness replied that the car park had nothing to do with this.

The Complainant asked about disabled bathrooms and whether people were required to provide a medical certificate to access the disabled bathroom. The witness said no, that the bathroom was open to members of the public.

The Complainant enquired in relation to “Adrian” (who had a beard) and whether there “anyone by that description” working in the store. The witness’s evidence was no-one fit that name or description, that there was one male manager who did not have a beard and there were also two female managers.

On 11/01/2022, the witness clarified that he was “just going for” his lunch at the time of the incident, that his lunch-time is flexible; he clarified that he thought he was going to have a casual meeting with (GD), which was worked-related, while he ate his lunch.

He was asked about whether the policy was displayed. He said that not the policy but a representation of government policy. He said that there were notices displayed about the business.

He said that there had been several changes to the government policy.

He said that the business had a Repak certificate of compliance.

He was asked whether there was security at the front door on the day in question and he confirmed that there was not.

He was asked if there were posters on the front door. He said there were some posters displayed, that there was a full covid station inside the door, which had hand sanitiser and sprays.

He was asked if the store normally hired security? He said that the store had security that worked for it, but that they were doing extra tasks during covid.

He was asked what their function would be? He outlined that in terms of security Lidl and Aldi went with a traffic light system and that his store went for “the human option.”

He was asked about training. He explained that it is a franchisee model, that Musgrave’s provided a training pack, “training we had to provide.”

He said that they had 109 employees all with different education levels, so they “had to make it accessible to people.” He also said that it was “changing so regularly too.”

He was asked whether he had a copy of the training with him. He said: “No.”

The Complainant asked the witness whether on 11/01/2023, under s. 24(3) of Health Act, if he had some power to enforce? Mr. Dempsey said that face coverings were mandatory at the time, an amendment had been put into the legislation – it was the same as if someone had turned up to the business not wearing any clothes. So, we could not enforce the policy, but could make sure that everyone was safe within the business.

Again, the witness was asked about the power to enforce, whether it was mandatory. He said that, yes, as far as he was concerned, that he was following the legislation at the time.

He was asked about the legislation. He said that it had been extended to wearing face masks, that they were “mandatory within the business.”

He was asked how far he would go to protect people. He said that he would protect people “by refusing service.”

He said that the Complainant had behaved in an aggressive manner – by talking over people, by aggressively quoting legislation, by talking about things unrelated to the conversation, by not listening, not engaging, not being polite, not upholding their end of the conversation, being disrespectful to people.

He re-iterated that it was necessary to protect customers who were not wearing masks (exempt) from other customers, and gave an example of where he had seen two customers shouting abuse at each other – one wearing a mask, one not, and the store had to intervene and clarify that the customer not wearing a mask was exempt.

He was asked about the guidelines which were in place and said again that in terms of the “terminology”, he was not a solicitor.

He was asked in terms of the poster that had been “proffered”, whether that was a guideline?

He said that he “would call it a notice of awareness. I certainly wouldn’t call it a guideline.”

He was asked whether he “had a copy of the policy in [his] hand”, and he said: “No.”

He said that “it was the government legislation that we were following” and that he may have misquoted the relevant section of the Health Act - he was unsure.   

He said that the legislation had changed so frequently and that “I’m sure at the time I was fully up to date.”

He confirmed that he had asked the Complainant to wear a face covering. He said that it was one of the first things” he said to the Complainant.

The Adjudication Officer, at the hearing, intervened in a back and forth between the Complainant and the witness, at this point, saying: “I think it’s common case that you refused, Mr. Breban?”

The Complainant clarified that he “objected.”

The Adjudication Officer suggested he had “declined?”

Again, the Complainant clarified “I objected.”

The Complainant asked the witness whether he had “any special and technical measure with regard to the processing of special category data?” The witness said: “I don’t know.”

The Complainant asked whether the witness had said he would call the gardai. The witness confirmed that he had.

He was asked “Why?”

The witness said: “To clarify the situation.”

Mr. Dempsey said: “As far as I was concerned, we were down the road of removal of service at that point.”

He said that his “understanding of the guards is to clarify the situation between two parties that have an issue, to clarify a conflict between two parties.” He said that he thought they were “at that stage”, that he was “standing in my shop” and the Complainant was quoting legislation at him.

He explained that ultimately the gardai were not called on the 11/01/2022 but were called on 12/01/2022. He said, of the Complainant’s behaviour: “I saw it as intimidation and harassment, at that stage.” He said that it was “quite upsetting for me, and for the team.”

The Complainant asked whether the witness accepted that he was there to get service, which the witness did.

The Complainant asked the witness whether he requested that he serve him outside. The witness said that he offered to serve the Complainant in 24 hours time (rather than the usual 48). He said that the witness refused that, “you said I was being unreasonable.”

The Complainant explained that he was hungry at the time. The witness said that: “I didn’t think my obligation was to feed you. How you manage your own intake of food is unrelated to me. I had a service to provide and I provided that service.”

The Complainant suggested that how he had been treated was “the epitome of humiliation.” The witness denied this: “No.”

The Complainant suggested at this point that the Director General of the Workplace Relations Commission (WRC) be produced for cross-examination, which the Adjudication Officer declined.

Mr. Hitchmough BL – final remarks

Mr. Hitchmough BL relied upon his written submissions. He submitted that the Respondent’s position is that the allegations are denied in full in relation to both days. He submitted that the Complainant turned up at the store on two occasions not wearing a face mask – the options open to him were wear one or to provide proof of exemption. At all times, Ronan Dempsey acting within the scope of the regulations, which were open and notorious at the time. Everyone was wearing a facemask at the task unless you had an exemption. The Respondent is relying on its policy which implemented in line with the regulations – the Complainant goes no further than to say that he is exempt or that he is claustrophobic, and he says that distinguishes his case from the other cases he has taken. The Respondent submits that a person must prove exemption and cannot just baldly state ‘claustrophobia.’ Claustrophobia was not contained on the exemption that he had. He said that the Respondent company accepted a medical cert. indicating an entitlement to an exemption, or a sunflower lanyard.

He submitted that this case was one of a number of opportunistic claims taken by the Complainant, that he had listed a number of them - all on similar facts, all on GDPR.

He submitted that O’Keeffe’s Supermarket, Bantry has been targeted.

He submitted that the Complainant had been aggressive, that he was quick to start citing legislation, and that it was his submission that the Complainant was weaponising this legislation to bring a claim.

He said that it appeared that the Complainant had done some homework with regard to GDPR, that he seemed to be positioning himself as a “white knight” with regard to fundamental rights and that he was actively looking to set up claims. He submitted that what occurred in this case goes far beyond someone looking to get a sandwich.

In the alternative, he submitted that, in any event, reasonable accommodation had been made in this case and, in fact, the Respondent qualified a policy that was in place and truncated the 48 hour waiting time to 24 hours. He submitted that this was not availed of by the Complainant, and that it is the Respondent’s submission that this constituted reasonable accommodation, in the circumstances.

He said that the Respondent was of the “firm view” that “we have been targeted.”

The Respondent’s representative drew attention to the fact that the Complainant omitted until the hearing (i.e. it was not in the ES1 or the complaint form, or on the audio tape) that he was in the shop a week before and nothing had been said to him. It was the evidence of Ronan Dempsey that the description of the shop worker given by the Complainant does not fit the description of one of his colleagues.

Re: GDPR and the Complainant’s objections in that regard, Mr. Hitchmough BL submitted that: For the purposes of checking exemptions, that the Respondent was neither a controller of data nor a processer - they never took it into their possession, merely needed to see proof of exemption, similar to an age card.

He submitted that, in the alternative, s. 53 of the Data Protection Act applies and that the Respondent was entitled to ask for proof of exemption on the basis of “serious cross-border threats to health issues.” He submitted that GDPR was quite live at the time and Covid-19 legislation was coming thick and fast and that [they] were not going to make themselves in breach of GDPR.

Mr. Hitchmough BL submitted on behalf of the Respondent that the Complainant was asked on both dates could he prove his exemption, that he refused/failed to do so. He highlighted that the Complainant, on his own evidence, said that he always put on audio when he was going into retail outlets. He concluded by submitting that the Complainant was weaponising the Equal Status Acts.

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

In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing.

CA-00049513-001

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: (a) 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 goods and/or services within the meaning of the Equal Status Acts.

The Complainant advised the hearing that he is a person who suffers from claustrophobia, which produces severe anxiety upon wearing a mask.

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

I accept that claustrophobia is a disability within the meaning of the Equal Status Act 2000. The Complainant verbally stated that he had claustrophobia to the Respondent. However, I find that he refused to produce his letter from his doctor stating that he had an exemption, which he testified he had on his person at the time (11/01/2022), putatively on the grounds of GDPR. Further, the document he possessed, which was produced at the hearing, did not state that he had claustrophobia, rather that he experienced severe anxiety upon wearing a mask, something he testified was a result of claustrophobia. It is common case by both parties that the letter was not produced by the Complainant to the Respondent in January 2022, and it is common case that it constitutes a letter of exemption. It was produced at the hearing.

Mr. Dempsey, of the Respondent, outlined for the Complainant on 11/01/2022, that the shop would accept a disability card or a letter of exemption from a doctor stating that the person was entitled to an exemption due to medical illness, that there was no requirement on a person to reveal their specific medical information in order to be able to avail of an exemption. Alternatively, the Complainant could wear a mask and continue to shop. Alternatively, the Complainant could be served by the business, in line with the company’s 48 hour waiting policy and home delivery. In the Complainant’s case, Mr Dempsey offered to cut the wait-time from 48 hours to 24 hours. Having carefully examined all of the evidence heard, I am satisfied that no evidence of an entitlement to an exemption was provided to the Respondent at the material time.

I am further satisfied that a bald assertion of disability is insufficient to be exempt from the application of the Health Regulations.

I refer to ADJ-00038035, “A Customer V. A Retail Premises” in which the applicable statutory background was set out, as follows:

“Statutory background – section 31A Health Act

The parties referred to SI 296/2020, which came into force on the 10th August 2020. This required the wearing of face coverings in designated locations. SI 296/2020 also made provision for ‘reasonable excuse’ for a person attending a designated premises, such as a store, without having to wear a mask. This included a person who could not wear a mask due to a disability. It did not apply to those aged under 13.

It is worth bearing in mind that SI 296/2020 and the other Regulations were promulgated to address the ‘immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19’, as set out in section 31A of the Health Act 1947 (as inserted at the start of the pandemic).

It was not disputed in this case that Covid-19 is an infectious disease which is transmitted through the air…It was also not disputed that face coverings provide protection against the transmission of the disease.

The threat to public health was real and immediate. In O’Doherty and Waters v Minister for Health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms: ‘The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated.’

Statutory background – Equal Status Act

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms:

‘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.’

Section 11 addresses harassment, which is defined in subsection (5) as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Therefore, I find that the Respondent was not on notice of the Complainant’s entitlement to an exemption, with reference to a disability. The Complainant testified that he objected – and he emphasised that it was ‘objected’ not declined and not refused - to producing what he characterised as special category data within the meaning of GDPR for processing “until such time as” the Respondent company could assure him as to its protocols and processes for the processing of such data were compliant with the requirements of GDPR. In such circumstances I am fully satisfied that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability, as against the Respondent company.

After hearing the relevant evidence and submissions in this case, I find that the Complainant has not established a prima facie case that:

1.       He was discriminated against in the denial of goods and services by the Respondent, or

2.       He was denied reasonable accommodation, for a disability.

Having carefully examined all the evidence adduced herein, I further find that the Complainant has failed to provide evidence in support of his assertion that he was treated less favourably by the Respondent on grounds of a disability. In fact, I find the exact opposite to have been the case – the Complainant was treated exactly the same as everybody else, arguably better.

Inherent within the idea of ‘reasonable accommodation’ is that you are acting reasonably, i.e. that the accommodation you are seeking is a reasonable one. The Equal Status Act 2000 is a remedial social statute, not an unfettered licence to dictate and demand. I simply do not accept the Complainant’s evidence that he was seeking reasonable accommodation from the Respondent. I find that the pre-meditated, covert recording of the Respondent and refusal to produce the letter of exemption he possessed, coupled with the tone and content of the Complainant’s interactions with Mr. Ronan Dempsey, supermarket manager of the Respondent company, simply defeat the Complainant’s case that what he was seeking from the Respondent was reasonable accommodation. By contrast, Mr. Dempsey, behaved politely, professionally and extremely reasonably in the face of a provocative and aggressive approach from the Complainant. Further, Mr. Dempsey did this on a recording unbeknownst to him but not unbeknownst to the Complainant. I commend him for his approach.

I further note that Mr. Dempsey, in his evidence at the hearing, highlighted his concern was that of the protection of customers, including the Complainant, and of staff in the context of the Covid-19 pandemic. On the balance of probabilities, I prefer the evidence of the Respondent’s witness over the evidence of the Complainant.

I also find that the audio pertaining to 11/01/2022 entered into evidence by the Complainant goes to support the Respondent’s version of events and not the Complainant’s.

The Complainant’s anger and distress at what he describes as being “humiliated” is misconceived. The Equal Status Act 2000 does not guarantee a particular individual a particular service or goods. Instead, it guarantees that in circumstances where a service or goods are being provided within the meaning of the Act, that they must be provided on a non-discriminatory basis, with reference to the nine protected grounds, the relevant one in this instance, being disability.

I find that the Complainant’s assertion that he was treated with aggression and “the epitome of humiliation” by the Respondent to be entirely false. The Complainant’s own recording demonstrates that he was treated with unfailing politeness and professionalism in the face of the Complainant engaging provocatively and aggressively with the Respondent.

CA-00049513-002

For completeness, I further accept the Respondent’s evidence that Mr. Dempsey did not follow the Complainant, as alleged, but instead was going towards the front of the store to pay for his own lunch.

I find that the Complainant has not made out any case that even approaches a prima facie case with respect to harassment or victimisation under the Equal Status Act 2000.

I find that the Complainant was not harassed or victimised by the Respondent, within the meaning of the Equal Status Act 2000.

CA-00049545-001

The Complainant did not seek to enter into evidence any audio in relation to the incident the following day (12/01/2022), when the gardai were called, despite giving sworn testimony that it was always his practice to record every interaction he had with businesses during the phase of Covid-19 when there were government-imposed restrictions.

The Respondent’s submission was that the behaviour of the Complainant on the second of the two days was even more aggressive than the first, and that the Respondent called the gardai the second day but not the first.

In order to meet his burden of proof, the Complainant must demonstrate that a conclusion of victimisation can reasonably be inferred or drawn from the facts. I prefer the evidence of the Respondent’s witness and the submission by the Respondent over those of the Complainant, in this regard also. I find that the Complainant was subject to no act of retaliation. Rather, he was treated with unfailing politeness, professionalism and reasonableness.

I find that the Complainant was not victimised by the Respondent, within the meaning of the Equal Status Act 2000.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

CA-00049513-001 – 11/01/2022

In accordance with s. 25(4) of the Equal Status Acts, 2000 to 2015, I find that the Complainant was not discriminated against by the Respondent on grounds of disability contrary to section 3 of the Equal Status Acts, 2000-2015.

CA-00049513-002 – 11/01/22 & 12/01/2022

In accordance with s. 25(4) of the Equal Status Acts, 2000 to 2015, I find that the Complainant was not harassed by the Respondent contrary to section 11 of the Equal Status Acts, 2000-2015.

CA-00049545-001 – 12/01/2022

In accordance with s. 25(4) of the Equal Status Acts, 2000 to 2015, I find that the Complainant was not victimised by the Respondent contrary to section 3 of the Equal Status Acts, 2000-2015.

Equal Status; Face mask; Reasonable Accommodation; Victimisation; Harassment; Health Act Regulations; Covid-19; Covert recording; GDPR;