Complainant

Respondent

Anonymised Parties

Customer

Retail Outlet

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00043431-001

07/04/2021

On 16th February 2021, the Complainant correspondence with the Respondent, alleging that they were in breach of her rights by refusing her entry to their premises on 13th January 2021. Herein, the Complainant accepted that she was not wearing a face covering at the relevant time, however she further submitted that she was medically exempt from the same. In circumstances whereby the Respondent failed to respond to this correspondence, the Complainant referred the present complaint to the Commission on 7th April 2021.

A hearing in relation to the same was convened for, and finalised on, 30th August 2022. In advance of this hearing, the Respondent issued a submission accepting that they refused service to the Complainant on the date in question, but that this was on foot of the contemporary covid restrictions. At the outset of the hearing the title of the Respondent was amended on consent to the legal entity listed above.

The Complainant gave evidence under affirmation in support of her complaint. A HR Manager for the Respondent gave evidence in defense of the allegations. In circumstances whereby the decision will refer to sensitive medical history, I have elected to anonymise the names of the parties in the published decision.

At the outset of the hearing, the Respondent raised a preliminary issue as to jurisdiction. As this issue is potentially determinative of the entire proceeds it will be considered in advance of the substantive dispute. 

At the outset of the hearing, Respondent submitted that the Complainant had not complied with the notice requirements as set out in the Act. By response, the Complainant submitted that her correspondence of 16th February 2021, whilst not contained on the standard ES1 form, complied with the relevant sections of the Act. The Respondent accepted that this correspondence was received but that it did not comply with the relevant notification requirements.

In this regard, Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

“(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

The Complainant’s correspondence of 16th February 2021 opens with the relevant definition contained within the Equal Status Act and expressly alleges that the Respondent was in breach of the same in refusing her service on the date in question. The correspondence goes on to request certain documentation and speaks of a “potential for civil liability” on the part of the Respondent.

Having regard to the foregoing, it is apparent that the time issue and the stipulation regarding the “nature of the allegation” are expressly complied with by virtue of this correspondence. In relation to the “complainant’s intention…to seek redress under this Act”, I note that the correspondence does not expressly state that the Complainant intended to institute the present proceedings in the event that she is dissatisfied with the response received.

However, from a plain reading of the correspondence, the Complainant outlined her rights under the present legislation and warned the Respondent that they may face civil liability thereafter. While the Complainant did not use the specific wording of seeking redress under the present Act, any reasonable reader of the correspondence would interpret the same in this manner. In this regard I am guided by the Judgement of O’Malley J. in the matter of G -v- Department of Social Protection [2015] IEHC 419, where she held that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

Having regard to the foregoing, I find that the Complainant has complied with the requirements set out in Section 21(2) of the Act, and the substantive matter falls to be considered.

The Complainant stated that she is a person that is exempt from wearing a face-covering in public places. She submitted that this exemption arises from a medical condition. During the period of the restrictions arising from the Covid-19 pandemic, she acquired correspondence from her GP stating that she was exempt in this manner. In this regard, the Complainant tended to avoid entering public places during the period of the restrictions, however when she did enter such a premises she brought her letter of exemption with her.

On 13th January 2021, the Complainant entered the Respondent’s premises. Whilst she was in the store, a member of staff enquired as to why she was not wearing a face-covering. When the Complainant stated that she was exempt from the same, the member of staff sought assistance for management. Some time later, a manager approached the Complainant and advised her that she must wear a mask whilst in the premises. The Complainant again attempt to explain that she was exempt, however the manager in question stated that the regulations stated that face masks must be worn at all times. Following this conversation, the Complainant sought to purchase the goods she had selected and leave the premises. However, when she approached the till, the manager she had previously spoken with advised that she was not to be served as she had spoken with her area manager in relation to the issue.  Thereafter, the Complainant sought to show the relevant staff members her letter of exemption, however they repeated that she was not entitled to service.

In answer to a question, the Complainant denied that any form of accommodation was offered to her. She stated that had such an accommodation been offered to her she would have readily accepted the same, rather then endure confrontation that arose thereafter. On the request of the Adjudicator, the Complainant submitted her letter of exemption, dated 12th January 2021. In answer to a question posed by the Adjudicator, the Complainant accepted that the letter simply stated that she was exempt, however she submitted a further medical report outlining the specific medical cause of the exemption. She stated that if asked, she provided the letter of exemption. If the Complainant was further queried in relation to the same, and if it was necessary, she would provide a copy of the medical report to a member of management.

In opening, the Respondent submitted that at all times, they sought to ensure their compliance with the restrictions arising from the Covid-19 pandemic. They submitted that they had extensive signage and sanitation, in addition to a significantly reduced capacity in all their stores to ensure compliance with the same. Notwithstanding the foregoing, the HR Manager for the Respondent stated that it was accepted that certain members of the public could not wear face coverings for medical reasons. In such situations, the customer in question would be asked to remain in a specific section of the premises, whilst a member of staff acted as a form of “personal shopper” on their behalf.

Regarding the incident in question, the HR Manager accepted that he was not present at the relevant time. However, he stated that that incident report, which was completed contemporaneously, stated that the Complainant entered the premise without wearing a face covering. Following a conversation with management, she was offered the above-mentioned accommodation. The Complainant refused the same, stating that she was exempt. Thereafter, the Complainant was refused service on health and safety grounds.

In answer to a question posed by the Adjudicator, the HR Manager stated that he was not the author of the report opened during the hearing. In this regard he stated that was not directly party to incident described by the Complainant and could not directly contradict the same.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or  a section of the public, and without prejudice to the generality of the foregoing, includes… (a) access to and the use of any place”

Section 3(1) provides that discrimination occurs,

“..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)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2)(g) lists disability as one such ground.

Section 4 of the Equal Status Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide as follows:

“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 facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

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.”

In the case of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that,

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

In the present case, the Complainant has alleged that she was unable to wear a mask due to a pre-existing medical condition. She stated that on 13th January 2021, she was refused service at the Respondent’s premises despite having correspondence confirming said exemption from her GP on her person. Thereafter a conflict of evidence exists regarding whether or not the Complainant was offered an accommodation or whether service was simply refused on the basis of her inability to wear a mask.

In this regard, I note that other parties to this conflict did not give evidence that would contradict the Complainant’s version of events. In essence, the Respondent’s position in this regard is based upon a written recording, itself taken by a person who not party to the events in question. In circumstances whereby the Complainant attended that hearing a gave direct evidence, under oath, regarding the events of 13th January 2021, I accept her account of the events in question as being accurate. In such circumstances, I find that the Complainant offered to show her letter of exemption to representative of the Respondent and that she was not offered any form of accommodation on that date.

In this regard, I note that the letter from the Complainant’s GP simply states that asks that the reader “excuse this lady from wearing a face covering”. In this regard, it is apparent that the letter is silent as to any particular disability that might give rise to this request. In this regard, the Complainant opened a medical report that outlined the specifics of a significant disability that gave rise to the Complainant inability to wear a mask.

Having considered this report, it is clear that the Complainant is a person that suffers from a disability within the definition of the Act. Regarding the wording of the letter of exemption, the Complainant stated that she was reluctant to disclose the precise nature of her medical history every time she was required to prove the exemption, however she did state that she would give more specific details if later called upon in appropriate circumstances.

Notwithstanding the above, the pertinent question for the purposes of Section 4 is the Respondent’s knowledge regarding this disability at the relevant time. In this regard, the Complainant stated that she offered to show the letter to the agents of the Respondent, but that they did not properly consider the same or did not consider it at all. In this regard, it is apparent that the Complainant put the Respondent on notice that she was not wearing a mask due to a medical issue. It is further apparent that the Compliant was fully prepared to inform the Respondent of the full extent of her disability had they made any form of enquiry in relation to the same.

Notwithstanding the foregoing, the Respondent submitted that they recognised that a certain sections of the public either could not or would not wear a face covering in public. In such circumstances they maintained a policy whereby a member of staff would act as a “personal shopper” while the customer remains in a designated area. While this policy appears to provide a reasonable accommodation to persons who cannot wear a face covering, the evidence of the Complainant, that was essentially uncontested, was that this accommodation was not offered to her. Indeed, during the hearing, the Complainant stated that she would have been agreeable to such an accommodation as it would have avoided the later, unpleasant confrontation.  

Having regard to the foregoing, it is apparent that the Complainant was not able to wear a face covering due to a disability. This disability was diagnosed by a medical professional, with a letter of exemption in relation to the same being issued to the Complainant. On the date in question, the evidence of the Complainant was that she had this letter of exemption on her person, but that an agent of the Respondent failed to properly consider the same. From the evidence of the Respondent, it is apparent that they had previously devised a process that would provide a reasonable accommodation for the Complainant. However, from the evidence of the Complainant it is apparent that this accommodation was not offered to her on the date in question.

Having regard to the accumulation of the foregoing points, I find that the Respondent is in breach of their obligations under Section 4 of the Act.  As a consequence of the same, I find that the Respondent engaged in conduct prohibited by the Act and the Complainant application is well-founded.

I find that the Respondent has discriminated against the Complainant by failing to do all that was reasonable to accommodate her needs as a person with a disability in accordance with Section 4(1) of the Act.

In circumstances whereby Section 2(1) defines “prohibited conduct” as, “discrimination against…a person in contravention of this Act”. I find that the Respondent has engaged in prohibited conduct within the meaning of the Act.

In this regard, Section 27(1) of the Act (as amended) provides that,

“…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

a)      an order for compensation for the effects of the prohibited conduct concerned; or

b)      an order that a person or persons specified in the order take a course of action which is so specified.”

In circumstances whereby the prohibited conduct did not arise as a consequence of a rule or procedure adopted by the Respondent, but rather a failure to properly apply an existing procedure, I find that compensation is the most appropriate remedy.

Having regard to the totality of the evidence presented, I order the Respondent to pay the Complainant the sum of €1,000 in compensation of the effects of the prohibited conduct.

Face-Covering, Exemption, Letter of Exemption, Reasonable Accommodation