Complainant

Respondent

Parties

Sophia  O'Malley

 Core Health and Beauty Limited

Representatives

  Self-Represented

 Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049820-001

23/04/2022

The Complainant submits that she was discriminated against on the grounds of disability when she was refused service  at the Respondent’s health and beauty salon for refusing to wear a mask.  The Complainant asserts that she informed staff at the premises on the day  that she had difficulty wearing a mask due to breathing difficulties. The Complainant also submits that the Respondent did not reasonably accommodate her disability on the day.  

The  Respondent denies the claim and submits that the Complainant had filled out a declaration form previously attesting  that she had no breathing difficulties, nor any other disability, and had committed to wearing a mask. The Respondent claims it had taken precautions at all times to protect staff and customers and to accommodate those with a declared disability.

The Complainant stated that she had a hearing loss and produced a certificate on the day of the hearing from a HSE doctor, dated 19 April 2022 , which stated  that it was noted to her (the Doctor) that   the Complainant  had mask phobia i.e., with her background of hearing impairment  she gets panic attacks and feeling of suffocation when she puts on the mask.

The Complainant said she attended  at the Respondent premises on 9 February 2022 but when asked to put on a mask by a member of staff she informed the member of staff that she could not breathe properly when wearing a mask. When asked to produce the medical evidence the Complainant told the staff member that under the GDPR rules there was no requirement to produce such a document.

The Complainant said that the staff member then left the room, she believes to consult with  the owner, who was not at the salon on the day, and when she returned the Complainant was told that she could not get service because she was not wearing a mask. The Complainant stated that she told the staff member she felt discriminated against on account of her disability and left the salon in an upset state.

The husband of the Complainant  gave evidence of attending at the salon later that day to voice his strong disapproval of the behaviour of staff and to reiterate his belief that  his wife was discriminated against.

In Cross-examination it was put to the Complainant  that she had signed a health declaration document previously where she stated that she had no breathing difficulties and was prepared to wear a mask. The Complainant answered that she had no recall of seeing or signing such a document but when the document was produced at the hearing, she said that she had signed the document attesting to no breathing difficulties because she did not want to declare her disability.

The Complainant accepted that she wore a face mask at her last visit at the salon but stated  that she wore it around her chin so that her mouth and nose were not blocked.

Summary of Complainant’s Legal Argument under the Equal Status Acts: (the Acts):

The Complainant cites Section 5 (1) of the Acts stipulates that a person shall not discriminate in disposing of goods to the public generally or a section of the public.

The Complainant further cites  section 3(2)(g) of the Acts, where it states that  an act of discrimination occurs if a person is treated less favourably on the grounds of their disability and that this provides clearly that disabled people have a right to equal access to services and the Respondent’s actions therefore constituted indirect disability discrimination. This is because a disabled person who is unable to wear a face covering has a right to access premises in the same manner than a person without such a disability that is able to wear a face covering.

The Complainant submitted that the Respondent also acted contrary to Paragraph 5 of S.I. 296 of 2020 where it states that:   a person has a reasonable excuse for not wearing a face covering if they suffer from a physical and/or mental health disability rendering them unable to wear such a face covering. Face masks should not be worn by any of the following groups:

·       Any person with difficulty breathing

·       Any person who is unconscious or incapacitated or any person who is unable to remove the face-covering without assistance

·        Any person who has special needs and who may feel upset or very uncomfortable wearing the face mask,  for example persons with intellectual or developmental disabilities, mental health conditions' sensory concerns or tactile sensitivity.

The Complainant  overall found the incident extremely distressing, humiliating and infuriating.

Summary of the Evidence of the Proprietor, Ms Regina Connolly:

The witness stated that she was not present on the relevant day when the Complainant arrived for her appointment but that when informed by a staff member by phone of developments , she instructed that the Complainant should  be refused service because she was not wearing a mask at the height of the Covid pandemic. This position was taken to protect staff and customers.

 The witness exhibited a health declaration form, signed by the Complainant in October 2020    where she declared that she had no difficulty in breathing/shortness of breath and where she signed a declaration which stated, “I will follow the salons strict guidelines on infection control i.e., facemasks/hand/ sanitizer/handwashing and general coughing and sneezing etiquette.”

The form also stated that “I understand that the answers I have given are correct and that I have not withheld any information that may be relevant to my treatment. Should any of the above information change, I will advise the salon immediately.”

The witness asserted that the Respondent accommodates clients with various levels of disabilities, both physical and mental. During Covid-19 their carers would phone ahead, and they would make the appropriate arrangements to accommodate them.

Summary of the Evidence of Ms A  – Respondent Staff Member;

The witness gave evidence that when the Complainant arrived for her appointment, she (the witness) asked her to put on a face mask. The Complainant told her that she was would not wear one because she felt uncomfortable and had difficulty breathing. The witness said that when she asked for documentation on  the  medical reason   as to why she could not wear a mask, the Complainant replied that she did not need to produce such evidence under GDPR rules. The witness accepted the Complainant mentioned disability towards the end of the conversation. The witness said that she felt very uncomfortable with the fact that the Complainant had no mask and was fearful for her own health. She said she  also felt intimidated by the Complainant’s behaviour on the day. 

The Relevant Legislation:

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines disability as follows:

“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;

The Burden of proof provision at section 38A provides

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

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

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

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant under equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it 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.”

 in order for the burden of proof to shift to the Respondent, the Complainant must first establish prima facie: (1) that her medical condition constituted a disability and (2),  that the refusal of service based on a requirement for mask wearing mask during the Covid-19 pandemic  was an act of discrimination by the Respondent.

The Complainant submitted a note from a doctor on the day of the hearing. The note was dated 19 April 2022, more than two months after the events at issue. When I asked the Complainant if she had a similar medical note  on 09 February 2022, she stated that she had one previously but lost it. The note produced at the hearing was clearly a note of exemption from wearing a mask under the then existing Covid-19 health regulations. This   note must be read in conjunction with the clearly contradictory health declaration of the Complainant of 8 October 2020.  I found the Complainant’s evidence puzzling in this regard. When the existence of the document was brought to the attention of the Complainant at the hearing, she stated that she had no recall of filling in such a document but when the original copy of the document was produced, she stated that the reason she signed an incorrect declaration about not having breathing difficulties and a willingness to wear a mask, was because she did not want to declare her medical history. When questioned about her previous visit to the salon when she accepted that she wore a mask, she stated that she wore it around her chin so that her mouth and nose would not  be obstructed. I found the Complainant’s evidence on the signed health declaration and previous mask wearing to be unconvincing  as testimony of reasonable behaviour when seeking accommodation for a disability.

Having taken the evidence of all witnesses into account, I conclude that the Complainant did not make out a prima facie case that she was discriminated against on the grounds of disability. Not alone did the Complainant refuse to disclose the nature of her disability on 9 February 2022, she clearly informed the Respondent previously by signed declaration that  she had no condition that prevented her from wearing a mask during Covid-19, including breathing difficulties, and moreover, she also declared that  should her health status  change,  she would inform  the Respondent of the fact.  I conclude  also that the Respondent gave very convincing evidence, both in document form and verbal, that its procedures during the Covid-19 pandemic were more than adequate and that all the necessary steps were taken to accommodate customers with declared disabilities. It stands to reason that a respondent cannot reasonably accommodate a person with a disability, when that  disability  is not apparent, nor made known to it, after sufficient enquiry. 

For the reasons outlined above, I find that the Respondent did not discriminate against the Complainant on the grounds of disability.

For the reasons outlined above, I find that the Complainant did not make out a prima facie case of discriminatory treatment therefore I decide that the Respondent did not discriminate against the Complainant on the grounds of disability.

Equal Status Acts 1998-2005, Disability, Mask Wearing, Covid-19.