Complainant

Respondent

Parties

Elizabeth  Torneria-Fuentes

Brown Thomas Arnotts Limited  

Representatives

  Self Represented

David Regan BL instructed by  Corrigan & Corrigan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047216-001

16/11/2021

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

CA-00047216-002

16/11/2021

The Complainant submits that she was discriminated against on the grounds of her disabilities on the 5/10/21 when she was refused access to a retail service following her refusal to wear a face covering, when she entered the Respondent’s store Brown Thomas in Limerick. The Complainant also submits that the Respondent failed to provide her with reasonable accommodation in light of her disabilities. The Complainant was accompanied by her daughter Victoria Torneria-Fuentes on the 5/10/21 who, it was claimed, also has a disability and was also refused access to service by the Respondent.

Notification of the complaint was sent by registered post on the 8/10/2021 to the Respondent with an intention to seek redress under the Equal Status Acts 2000 as amended. No reply was received to the notification and a complaint was lodged with the Workplace Relations Commission (WRC) on the 16/11/21.  

The Respondent denies that it discriminated against the Complainant or her daughter in any way as alleged by the Complainant and is disputing the claim.

The following is a summary of the Complainant’s case as set out in the claim form and in the written statement of facts submitted on her behalf and that of her daughter Ms.  Torneria-Fuentes case, supported by the evidence provided at the hearing.

On the 5/10/2021 the Complainant and her daughter entered the Respondent’s store Brown Thomas Limerick to collect an on-line order from their “click and collect” service. The Complainant submits that both herself and her daughter have numerous medical conditions and therefore cannot wear a mask and relied upon the face mask exemption set under S.I. no 296 of 2020, Section 5 (a) of which provides for a “reasonable excuse” based upon their medical conditions and disability status.

It was submitted that on the 5/10/2021 the Complainant and her daughter were wearing a sunflower lanyard which, it is submitted, shows that they have a medical mask exemption. This lanyard (a photo of same was shown at the hearing) refers to Hidden Disabilities and states “Face covering exempt”.

On the 5/10/2021 they were stopped by the Respondent’s Security Officer Gary O’Sullivan who, it is submitted, told them to wear a mask. On the claim form the Complainant states “I told the gentlemen that we both have medical exemptions and that these lanyards are not even required under current legislation but that we wear them for ease”. It is submitted that the Complainant informed Mr. O’Sullivan that she has an exemption from wearing a face mask based on her disabilities. 

It is submitted that a discussion ensued between them and Mr. O’Sullivan, who told them that it was the Respondent’s policy to stop everyone not wearing a mask. It is alleged that Mr O’Sullivan stated, that it was his “job to follow the orders of head office”. It is alleged that as Mr. O’Sullivan became more confrontational, the Complainant and her daughter decided to leave the store.

It was submitted that the Complainant’s daughter asked Mr. O’Sullivan if he could bring her online order to the front door of the store and he refused to do so, thereby refusing to provide any reasonable accommodations in light of the Complainant’s disabilities.

It is further submitted that the Complainant and her daughter are not required to provide their medical data to anyone other than a trained medical person as provided in their statement: - “ It must be noted that private medical information is protected by GDPR and it is not required to be shown to anybody other than a trained medical person who is qualified to interpret the information properly.”

It is submitted that the Respondent not only breached their own Face Coverings policy but discriminated against the Complainant on the grounds of her disabilities and failed to provide her with reasonable accommodation in breach of the provisions of the Equal Status Acts 2000. It is further alleged that Complainant and her daughter suffered severe upset and anxiety due to manner in which they were allegedly treated by the Respondent’s Security Officer.

The Complainant sent an ES 1 form to the Respondent by way of registered post on the 8/10/21 advising of her intention to issue proceedings under the Equal Status Acts. No reply was received from the Respondent.

Evidence of the Complainant, Ms. Elizabeth Torneria-Fuentes

The Complainant stated that she entered the store on the 5/10/2021 with her daughter to collect an online order. She stated that she was wearing a sunflower lanyard obtained from the UK Disability Association which is “recognised the world over” which states “Hidden Disabilities”.

The Complainant stated that she has numerous disabilities including chronic bronchitis which was   diagnosed several years ago. She is on medication for it and uses 2 inhalers. She stated that she can’t wear a mask and finds it difficult to breathe, which triggers her to cough. She also suffers from anxiety and is on long term medication as a result.  The Complainant stated that she gets severe panic attacks and has received counselling in this regard. Stemming from these disabilities she wears a lanyard. The Complainant referred to a medical report dated 27/9/2022 from her GP which states that she has these disabilities.

The Complainant stated that she was not aware of the Respondent’s face coverings policy until after the incident on the 5/10/2021. She confirmed that she didn’t contact the Respondent prior to entering the store. On the 5/10/2021 the Complainant was in the Respondent’s store and was asked by Mr. O’Sullivan why she wasn’t wearing a mask. The Complainant advised Mr. O’Sullivan that she has a lanyard which states that she has a hidden disability and that she is exempt from wearing a mask. The Complainant stated that she showed him the lanyard and told Mr. O’Sullivan that she had numerous disabilities.

The Complainant confirmed that she didn’t advise Mr. O’Sullivan what her medical conditions were as, in her view, he was not interested in listening to her. Mr. O’Sullivan advised her that he was following orders from head office and that she had to leave the store.  A discussion ensued between the Complainant and Mr. O’Sullivan when she told him that the Respondent’s policy “didn’t trump the law of the land” and that people with disabilities are exempt from wearing masks.

The Complainant’s daughter told her to leave the store as she believed she might have a panic attack as a result of the incident, they both left the store. The Complainant confirmed that no alternatives were put to them by Mr. O’Sullivan. Her daughter asked for the item to be brought outside the door and they were advised that this was not possible.

Cross examination of the Complainant

Under cross examination the Complainant confirmed that she thought she had to collect her purchase in the store, when it was put to her that she had bought an item for €4 and that she must have known that it could have been delivered to her house. The Complainant confirmed that she didn’t look on the Respondent’s website to see if there were other ways that the item could be collected.

The Complainant also confirmed that she didn’t look at any other retail stores websites to ascertain their mask wearing policies as she was on relying on the exemption set out at Section 5 of S.I. no 296 of 2020. 

The Complainant also confirmed that she didn’t contact the Respondent in advice to warn them that she was coming into the store, nor did she warn any other store in advance when she went shopping. The Complainant confirmed that when she went shopping online on the Respondent’s website that she didn’t look for their mask wearing policy, nor did she try to make an appointment for shopping as provided for under the Respondent’s face coverings policy.

In cross examination the Complainant confirmed that, in order to obtain a lanyard from the Hidden Disabilities group, it is not necessary to submit any medical evidence.

The Complainant confirmed that her medical report dated 27/9/2020 was submitted to the WRC nearly one year after the incident took place. When it was put to the Complainant that the medical report does not refer to the fact that, in view of her medical conditions, she is unable to wear a mask, she replied that it is “self-evident on the report that I cannot wear a mask”.

In reply to a question from the Adjudication Officer, the Complainant confirmed that the lanyard can be purchased from the Hidden Disabilities website at the cost of €7/8, no medical evidence is required to buy one. 

Evidence of witness, Ms. Victoria Torneria-Fuentes

Ms. Torneria-Fuentes confirmed that she was with her mother on the 5/10/2021 and supports what her mother said in evidence in regard to the incident in the Respondent’s store. She stated that she had more interaction with Mr. O’Sullivan and that she was wearing the same lanyard as her mother.

Ms. Torneria-Fuentes confirmed that they were told by Mr. O’Sullivan to leave the Respondent’s store as they could not remain in the store without wearing a face mask, and that he was acting under orders from head office.  Ms. Torneria-Fuentes confirmed that when she asked Mr. O’Sullivan if he could deliver the order to them outside the store, he refused to facilitate this.

Ms. Torneria-Fuentes confirmed that they were contacted by the Respondent’s customer service officer who advised them as they hadn’t collected their online order that it would be sent in the post which they received in November 2021.

Ms. Torneria-Fuentes confirmed that they discovered the Respondent’s face coverings policy online sometime in 2022 when a friend advised them to look online. 

Ms. Torneria-Fuentes stated in evidence that she didn’t tell Mr. O’Sullivan what disabilities she had as she didn’t feel that a Security Officer was in a position to interpret medical data. She stated that she informed him that they were in the store to collect the online order and were not there window shopping.

The Respondent submitted that it was not accepted that the Complainant is a person with a disability within the meaning of the Equal Status Acts. Furthermore, it was submitted that at the time the submission was lodged with the WRC there was no medical evidence of the Complainant’s disability in any of the paperwork submitted to the WRC nor evidence submitted that the Complainant’s health conditions come within the definition of a disability for the purpose of the Equal Status Acts. 

It was further asserted that the Respondent’s request to wear a face covering was entirely related to the legal requirement to do so (save in certain instances) and this was a legitimate and reasonable request pursuant to Section 31(a) of the Health Act 1947 as amended by Statutory Instrument 296 of 2020 (Temporary Restrictions) (COVID-19) (Face Coverings in certain premises and businesses) Regulations 2020. It was submitted that the Respondent was deemed to be a “responsible person” within the meaning of the legislation and was obliged to comply with this legislation. It was further submitted that the Respondent was also required to protect staff and other customers that visited the store.

It was submitted that the Complainant had failed to discharge the burden of proof which initially rests on her to establish a prima facie case of discrimination on the basis that the Complainant was not treated less favourably by the Respondent on the grounds of a disability. In addition, it was submitted that the Complainant has not proven that the Respondent failed to provide her with reasonable accommodation for such a disability.

At the hearing Counsel for the Respondent submitted that the first time the Respondent became aware that the Complainant had a disability was by way of a medical report submitted to the WRC nearly a year after the incident took place. It was contended that the medical report did not state that the Complainant could not wear a face mask due to her disability and, therefore, it was merely an assertion on behalf of the Complainant with no medical evidence to support it.

Counsel for the Respondent submitted that the lanyard worn by the Complainant provides no evidence of a disability and is available to anyone without medical evidence. Furthermore, it was contended that the Respondent had made available a number of options for people who were seeking to be reasonably accommodated in light of the fact that they were unable to wear a face mask and four options were outlined in this regard.  

In conclusion it was stated that the burden of proof upon the Complainant pursuant to Section 38A of the Equal Status Acts has not been satisfied.

The Respondent relied upon two cases ADJ- 00033208 A Customer v A Retail Shop and ADJ-00033904 Sarah Mcardle v  A.O’Gorman & Company Limited O’Gormans Supervalu. It was submitted that both cases are relevant, and it was found in the latter case that the Complainant had not provided evidence that she had a disability that in turn prevented her from wearing a mask and the Adjudication Officer found against the Complainant. 

It was submitted that the Complainant has conflated two separate issues. Firstly, the interpretation and potential breach of S.I. 296 of 2020 and secondly the prohibition against discrimination on the grounds of a disability by a service provider, and the obligation to provide reasonable accommodation as provided for under the Equal Status Acts.

Evidence of Gary O’Sullivan former Security Officer with the Respondent 

Mr. O’Sullivan gave evidence that at the time of the incident that he was employed in the Respondent’s store in Limerick as a Security Supervisor. His role involved managing a team and he also had responsibility to ensure that every customer entering the store was wearing a mask. Mr. O’Sullivan stated that when he saw the Complainant come in with her daughter and noticed that they were not wearing masks he asked them to put on a face mask. Mr. O’Sullivan stated that neither the Complainant nor her daughter informed him of any reason why they couldn’t wear a face mask, but they did show him their lanyards. Mr. O’Sullivan stated that he was “not particularly aware of what the lanyard meant”.

He stated that it was very hard to speak to either as both the Complainant and her daughter were speaking over him and were telling him about their human rights and constitutional rights to be in the store without a face mask. Mr. O’Sullivan stated that a photo was taken of his security licence, and they did not ask him his name. Mr. O’Sullivan stated that he was trying to explain the Respondent’s face coverings policy to them.

He further stated that he couldn’t recall if he was asked whether he could bring the online order outside the store for the Complainant and her daughter to collect.

In reply to a question from the Adjudication Officer he stated that the didn’t read the Complainant’s lanyard and wasn’t aware what it meant.

Evidence of Grace Roost, employee of the Respondent.

Ms. Roost stated that she worked with the Respondent in their store in Limerick and was standing two or three feet away from where the incident occurred on the 5/10/2021. She stated that the discussion between the Complainant and her daughter and Mr. O’Sullivan got quite heated. Ms. Roost stated that the two ladies were speaking together and heard them referencing “breaking the law of the land” and heard Mr. O’Sullivan trying to enforce the Face Coverings policy.

She stated that she saw the Complainant and her daughter leave the premises. In relation to the Face Coverings policy, Ms. Roost stated that all staff members were required to wear a mask and that all customers were required to wear one unless they had a pre-booked appointment when customers could shop early with a staff member present in line with the Respondent’s policy. Ms. Roost stated in relation to her understanding of what the lanyard signified, that she hadn’t seen it before in the store and thought it related to mask wearing.

Evidence of Lorraine Bedford, Health and Safety Manager with the Respondent.

Ms. Bedford stated that the Respondent took the decision to require all staff to wear face masks prior to the government introducing regulations on this. She stated that it was mandatory in all stores to wear masks and if someone couldn’t wear a mask, they could wear a visor instead.

Ms. Bedford stated that the Respondent introduced their Face Coverings policy in June 2021 which stated that it was mandatory for staff and customers to wear a face mask. For those customers who were exempt from wearing a face covering they were able to make an appointment to shop if they contacted the store beforehand and could book a slot on their website. She stated that this provision was introduced before June 2021. For those who wished to make an appointment, they would be met at the door by a team member who would stay with the customer while shopping.

Ms. Bedford stated that there was a banner on their website displaying the policy from early in the pandemic and that there was a Questions and Answers section in relation to Covid-19 on it. In terms of other methods of ordering from the Respondent, customers could use the phone and purchased items could be collected at the door of the store. In addition, it was possible to order online, click and collect, and to post out any item.

Ms. Bedford stated that the June 2021 policy required customers to wear an identifier which was a sticker with a white background and a sunflower during their appointment time, however due to feedback from customers, it was removed from their policy.

Ms. Bedford stated in relation to her understanding of what the lanyard signified, that she would have seen it before but was not aware of what it represented.       

No issues arise as to jurisdiction in this case. The complaint was brought within the six-month time limit of the alleged breach and notice was given by the Complainant to the Respondent using the ES1 form within two months of the alleged breach.

A preliminary matter arose on the basis that from the details of the specific complaint as outlined by the Complainant it was clear that the Complainant was claiming a failure by the Respondent to provide reasonable accommodation for her disabilities. However, the Complainant did not indicate that she was alleging failure to provide reasonable accommodation by marking the relevant box on the complaint form. Counsel for the Respondent did not raise an objection to the inclusion of this claim on the basis that the Respondent could not state that they were surprised by this claim, as it was evident from the narrative of the complaint form. I referred to the authority laid down in the Supreme Court case of County Louth VEC v The Equality Tribunal, [2016] IESC 40 and I am satisfied that the claim form can be amended where the justice of the case requires it, and this is such a case.

In that judgement, McKechnie J explained the status and the importance of the EE1 form, which was in use by the Equality Tribunal at that time. In paragraph 9 of the judgment, McKechnie J summarised the findings made by McGovern J in the High Court, as follows:

“…(iii) That the EE1 Form, which had no statutory footing, and which was merely an administrative document, had as its purpose the setting out, in brief outline, of the nature of the complaint; as such, a Complainant was not limited to its contents.

(iv) That as a result, by analogy with court proceedings, there was no reason why the claim as formulated could not be amended so long as the general nature of the complaint remained the same;…”

I am satisfied in the within matter that the general nature of the complaint remains the same and the correction being made is an administrative one.

The issue for determination is whether the Respondent discriminated against the Complainant on grounds of a disability in terms of Section 3(2) of the Equal Status Acts 2000, as amended (the Acts) and whether the Respondent failed to provide the Complainant with reasonable accommodation for that her disabilities pursuant to Section 4 of the Acts.

Section 2(1) of the Acts defines “disability” in the relevant part as;

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

c. the presence in the body of organisms causing, or likely to cause, chronic disease or illness, 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.

Section 3(1) provides in the relevant part that 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) (in this Act referred to as the ‘‘discriminatory grounds) which ….’’

Section 3(2)(g) provides in the relevant part 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 for the burden of proof in the following terms:

 "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."

The burden of proof requires the Complainant to establish, in the first instance, facts upon which 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 a service within the meaning of the Acts.

The Complainant submits that she is a person with a disability for the purposes of the Act.  The Respondent denies the claim on the basis that the first time they were made aware that the Complainant had a disability was nearly a year after the incident when the Complainant forwarded a medical report dated 27/9/22 to the WRC. The claim is further denied on the basis that the medical report furnished by the Complainant does not state that, as a result of the Complainant’s disability, that she is unable to wear a mask and that no medical evidence was presented to establish this fact. Accordingly, the Respondent claims that the Complainant has not provided sufficient evidence of discrimination to shift the burden of proof to the Respondent.

It is my view that at the centre of this complaint lies a misunderstanding stemming from a conflation of two distinct issues, as has occurred in other Equal Status cases on face mask wearing. The first matter concerns the interpretation and reliance upon the face mask exemption set out at Section 5 of the S.I. 296 of 2020 which provides for a reasonable excuse to a person who is unable to wear a face mask on medical grounds.  The second matter has been aptly captured by an Adjudication Officer in the case of A Customer v A Retail Shop ADJ-00033208 also concerning a similar complaint, who stated;

“Just because someone with a disability may be entitled to assert a defence of reasonable excuse if they are charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask is evidence that they have been discriminated against or that there has been a failure to make reasonable accommodation”.

In determining this case I am required to address three key questions:

Firstly, did the Complainant have a disability within the meaning of the Acts? Secondly, was the Respondent aware of the disability at the time of the incident? Lastly, did the Respondent treat the Complainant less favourably on the grounds of her disability and/or failed to provide the Complainant with reasonable accommodation for her disability? 

The Complainant asserts that she has numerous disabilities. At the hearing the Complainant stated that she has chronic bronchitis, which was diagnosed several years ago, suffers from anxiety, and can also get severe panic attacks. The Complainant further stated that she is on long term medication for both conditions and these are hidden disabilities. A report from the Complainant’s GP dated 27/9/2022 was furnished prior to the hearing which confirms that she has both medical conditions and also states that the “medical conditions are hidden issues which are not evident outside of a clinical setting”.  

I am satisfied based on the evidence of the Complainant and the medical evidence submitted by the Complainant’s GP that the Complainant had various disabilities within the meaning of the Acts in particular Section 2(1)(c) and (e) at the time of the incident.

In order for the Complainant to prove a prime facie case of discrimination she must show that the Respondent was aware of her disabilities at the time of the incident.  The Complainant stated in evidence that on the 5/10/2021 while in the Respondent’s store she was asked by Mr. O’Sullivan why she wasn’t wearing a mask. The Complainant stated that she advised Mr. O’Sullivan that she has a lanyard which states that she has a hidden disability, that she is exempt from wearing a face mask, she showed him the lanyard and told him she has numerous disabilities.

The Complainant confirmed that she didn’t advise Mr. O’Sullivan what her medical conditions were as in her view he was not interested in listening to her. On the claim form the Complainant states “I told the gentlemen that we both have medical exemptions and that these lanyards are not even required under current legislation but that we wear them for ease”.  The Complainant submitted that she informed Mr. O’Sullivan that she has an exemption from wearing a face mask based on her disabilities.  I note from the statement provided by the Complainant that it is stated that she was not required to provide her medical data to anyone other than a trained medical person.

In evidence Mr. O’Sullivan stated that the Complainant did not provide any reason why she couldn’t wear a face mask but did show him her lanyard which refers to hidden disabilities and states “face mask exempt”. Mr. O’Sullivan stated that he was “not particularly aware of what the lanyard meant”.

I am satisfied based on the evidence of the Complainant that the Respondent was not made aware of the nature of the Complainant’s disabilities, nor did she offer to provide proof of her medical conditions to substantiate the basis of her request for reasonable accommodation, at the time of the alleged breach.  This finding is supported by the evidence of Mr. O’Sullivan who stated that the Complainant did not advise him of why she could not wear a face mask, nor did she provide him with any proof to explain the basis of her exemption.

In evidence the Complainant stated that she didn’t advise Mr. O’Sullivan of what her disabilities were as in her view he was not interested in listening to her.  I am not persuaded by the Complainant’s view in this regard which in my view is inconsistent with the Complainant’s submission which states: “It must be noted that private medical information is protected by GDPR and it is not required to be shown to anybody other than a trained medical person who is qualified to interpret the information properly.” This view was supported by the evidence of Ms. Victoria Torneria-Fuentes who stated that she didn’t tell Mr. O’Sullivan what disabilities she had as she didn’t feel that a Security Officer was in a position to interpret medical data.

It is my view that the Complainant relied upon the fact that she was wearing a lanyard which referred to “Hidden Disabilities” which she stated in evidence is “recognised the world over” that she was medically exempt from wearing a face mask and, therefore, was not obliged to inform Mr. O’Sullivan of the nature of her disabilities.    

It is the Respondent’s submission that the first time they were made aware of the Complainant’s medical conditions was a nearly a year after the incident by way of her medical report dated 27/9/2022.  It is also submitted that the Complainant’s medical report does not state that she is unable to wear a mask due to her disabilities.

In order for the Respondent to provide reasonable accommodation to the Complainant for her disabilities, the Respondent must be aware of what the disability is in order to fully assess the most appropriate measures to provide reasonable accommodation. I accept the evidence of Ms. Bedford that the Respondent had put in place various measures to accommodate customers who were unable to wear a face mask while shopping and various options were outlined.

Accordingly, I am satisfied that the Respondent was not made aware of the nature of the Complainant’s disabilities on the date in question and, therefore, I find that there is no evidence to support a finding that the Complainant was treated less favourably by the Respondent on the grounds of her disabilities and  that the Respondent failed to provide her with reasonable accommodation for such disabilities.   

In the circumstances of this case, for the reasons set out above, I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on the grounds of her disabilities.  

For the reasons set out above I find this complaint to be not well founded.

For the reasons set out above I declare this complaint to be not well founded.

-          Face masks- exemption – reasonable accommodation – disability