ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034027
Parties:
| Complainant | Respondent |
Anonymised Parties | Customer | Health Centre |
Representatives | Self-Represented | Mr. Peter Duff, Peter Duff & Co, Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00044836-001 | 29/06/2021 |
Date of Adjudication Hearing: 28/11/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Respondent is a health centre based in south Dublin. The Complainant was a member of this organsation for the relevant period of the present complaint. On 21st June 2021, the Complainant corresponded with the Respondent alleging that she had been discriminated against on the grounds of disability. Following the receipt of a response to this allegation, she referred the present complaint to the Commission on 29th June 2021. It is apparent that the notification requirements stipulated in the Act were met by the Complainant prior to said referral.
A hearing in relation to the matter was convened for, and finalised on, 28th November 2022. The Complainant attended herself to give evidence under oath in support of her complaint. There was no appearance by, or on behalf of, the Respondent at this hearing. In the days following the hearing, the Respondent’s representative corresponded with the Commission, alleging that the Respondent had not been properly notified of the hearing. In particular, they submitted that the relevant notice of hearing was issued to the Respondent directly, rather than to the Respondent’s nominated representative. In light of the foregoing, the Respondent submitted that the matter should be re-listed for hearing. In circumstances whereby the notification was issued directly to the Respondent at the relevant time, this application was not granted. Notwithstanding the foregoing, the application is rendered somewhat moot in consideration of the decision below.
In circumstances whereby the Complainant stated that the matter referred to sensitive medical details, she requested that the decision be anonymised in its published form. Having considered this application, I have exercised the discretion provided by Section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 to anonymise the names of the parties in the published decision. |
Summary of Complainant’s Case:
The Complainant submitted that she was a person that was, and remains, medically exempt from wearing a face covering in public. Following the partial lifting of the restrictions arising from the Covid-19 pandemic in 2020, the Complainant enquired as to whether she would be permitted to use the Respondent’s facilities without wearing a mask. When the Respondent stated that this would not be an issue, the Complainant used the facilities throughout 2020 with some regularity. Notwithstanding the foregoing, on two occasions during 2021, members of staff asked the Complainant why she was not wearing a face covering whilst using the facilities. On both occasions the Complainant reminded the Respondent of her previous conversation, and no further issue was raised at that time. On 20th June 2021, the Complainant was denied entry to the premises by the automated “swipe card” process. On querying the same, the Respondent’s receptionist informed the Complainant that she would be required to provide a GP’s correspondence confirming the exemption. By response, the Complainant advised that she did not have to disclose her private medical information in this manner, and that the Respondent’s refusal to allow her to use the premises was discriminatory under the terms of the present Act. On 21st June, the Complainant issued correspondence to the Respondent alleging that she had been discriminated against under the terms of the present Act. By response, the Respondent stated that once they received correspondence from the Complainant’s GP to the effect that she was exempt she would be permitted to use the premises, provided she wore a wristband that stated that the Complainant was “mask exempt”. This correspondence expressly stated that the correspondence did not have to disclose a specific medical condition. By response, the Complainant forwarded her letter of exemption to the Respondent and advised that she intended to continue with the present complaint. When the Complainant attended the Respondent’s premises to collect the wristband in question, the same was not available and the staff were unaware of the Complainant’s prior conversations in this regard. Nonetheless, the Complainant did belatedly receive the band in question and wore the same as required. The Complainant submitted that the requirement to wear the wristband was itself discriminatory in nature. She stated that she believed that she was being singled out by the Respondent as she observed other members using the facilities without a face covering or the wristband. She further submitted that the rule was not uniformly applied in all areas of the facility. |
Summary of Respondent’s Case:
AS outlined above, the Respondent did not attend the hearing as scheduled. |
Findings and Conclusions:
In the present case, the Complainant has alleged that the Respondent discriminated against her by requiring her to wear a wristband that states that she is “mask exempt”. She submitted that as she is a person that is medically exempt from wearing a mask, in accordance with Statutory Instrument 296 of 2000, such a requirement constitutes discrimination within the terms of the impleaded Act. In this regard, Section 3(1) of the Act 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 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… (ii) entertainment, recreation or refreshment” Regarding the burden of proof in respect of such matters, Section 38A provides that, “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”. In her correspondence with the Respondent, the Complainant relied on the provisions of Statutory Instrument 296 of 2000 to ground her complaint of discrimination. In this regard, it should be noted that the Commission enjoys no jurisdiction that particular legislative provision. In order for the Complainant to succeed under the present Act she must first establish the existence of a “disability” within the meaning of the same. In this regard, Section 2(1) of the Act defines “disability” in the following terms, 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” In the present case, the Complainant initially stated that she encountered difficulty in access the Respondent’s premises due to her inability to wear a face covering. While this inability may well have arisen from one of the items listed above, the Complainant failed to outline a disability within the terms of the Act at that time. While I note that the Complainant issued a copy of a GP’s letter of exemption to the Respondent (following the issuing of the notification under the Act), this correspondence is also silent as to any disability relevant to the Complainant. In circumstances whereby the Complaint has failed to demonstrate that she suffers from a disability within the meaning of the Act, I find that she has not established the primary facts from which it may be presumed that prohibited conduct has occurred. In such circumstances, I find that the Complainant’s application is not well-founded. |
Decision:
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.
I find that the Complainant has not established the primary facts from which it may be presumed that prohibited conduct has occurred. In such circumstances, I find that the Complainant’s application is not well-founded. |
Dated: 30th March 2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Mask, Face-Covering, Disability |