Complainant

Respondent

Anonymised Parties

A Customer

A Supermarket

Representatives

 VP Shields 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-00048677-001

16/02/2022

The complainant alleges she was discriminated against on the grounds of her disability in the provision of goods/services.  The respondent denies the complaint.

Preliminary Issue #1:

In response to the respondent’s submission that the complainant named the respondent incorrectly, the complainant submitted that she worked with the knowledge she had at the time, the letter accompanying the ES1 was addressed to the appropriately named respondent and that she wished to therefore, amend the respondent’s name.  Under cross examination, the complainant replied that she looked up the CRO and she accepts the respondent operates under a different name than that on the ES1, but it was at the correct address and the letter accompanying it had the trading name.

Preliminary Issue #2

The complainant requested the decision be anonymised owing to her medical condition and provided a letter from a psychotherapist that stated “it would be essential that the matter is dealt with in private as to deal with it in public would lead to further psychological distress to (complainant)”

Substantive Issue:

The complainant gave evidence that she has post-traumatic stress disorder (PTSD) and that she is exempt from wearing a face mask and has a letter from her gp confirming this.  The complainant submitted that on 28th August 2021, she entered the store and saw a notice about the wearing of face masks and a notice that the respondent would “support you in getting your shopping”.  The complainant had her 5-year-old daughter with her and entered the store. 

The complainant was told by Mr D, an employee not present at the hearing, that she could not enter the store without a mask.  The complainant told Mr D that she was exempt from wearing a mask and Mr D said that he could not allow her to enter even if she was exempt and that she would need to prove it.  The complainant said she decided at that stage not to show Mr D the medical cert.  Mr D went to get a manager, Mr B, and while he did, the complainant asked could her daughter use the toilets, and this was allowed.   As the toilet facilities are at the back of the store the complainant picked up a product and brought it to the front where she met Mr D again.  Mr D said the manager Mr B had come but left again as there was no sign of the complainant.  Mr B arrived back again and told the complainant she needed to prove her exemption.  Mr B told her if she did not provide proof of an exemption, he could then refuse entry.  Another customer, Ms A was nearby and told Mr B that what the complainant was saying was correct and that the complainant did not need to show the medical exemption.  The complainant asked Mr B if she was allowed to purchase the product and he said yes but that in future she would need to provide a copy of the exemption. 

The complainant submitted that the posters outside the store are misleading as the store did not support the complainant. The complainant submitted that her disability is a trauma and that it was sufficient for her to tell the respondent that she was exempt.  The event caused a lot of stress to the complainant who was 9 weeks pregnant at the time.  The complainant submitted that one cannot attempt to justify a discriminatory practice on the unfounded basis that such actions protect customers or staff and that the respondent discriminated against the complainant as a person with a disability.

The complainant sent an ES1 form to the respondent on 2nd September 2021 submitting that she had been discriminated against, harassed, or allowed to be harassed, victimised and that the respondent had failed to provide her with reasonable accommodation and did not receive a reply.  The complainant provided at the hearing a letter from her Psychotherapist which stated:

“I believe (complainant) would be exempt from wearing a face covering because of her mental health disability as it causes her trauma”.

A letter from the complainant’s gp dated 10 August 2020 was provided at the hearing, stating:

“(complainant) is a patient of this practice.  She is unable to wear a mask for medical reasons”.

The complainant also provided a recording of the incident and as a transcript of the conversation.

The evidence of the complainant was that she did not speak in a raised voice and that she started recording the conversation after she went to the toilets with her daughter.   The complainant said that the supermarket did not support her despite what their posters claimed they would do and that it was her belief that it was sufficient to say that the complainant was exempt.  The complainant cited various Statutory Instruments including SI 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020.

Under cross examination the complainant said she told the respondent that she had a medical exemption and that she did not have to show the medical exemption to anyone including the garda except on public transport.  She said that any medical information is sensitive and that the medical letter would also have her address on it. The complainant said she did not have an issue with saying to staff that she is exempt but that she should not have to show medical proof. The complainant submitted that it is irritating to be asked to show the medical exempt form every time.

Evidence of Ms A, a customer in the store at the time, was that she did not know the complainant prior to the incident in the store.  She said that sometime after the incident, the complainant and Ms A recognised each other, and the complainant thanked Ms A for coming to her aid and Ms A had told the complainant that she did not feel she had done enough on the day.  Ms A said that she noticed 2 men talking to a woman and it seemed an intense conversation.  She heard the complainant say that she did not need to show a medical pass and she told the men Mr B and Mr D that the complainant does not have to show it.  The men said they would call the garda.  Ms A said she was upset and wrote a letter of complaint to the respondent about the incident.  She said it was a difficult situation and that we need to take care of people better than that.  Under cross examination Ms A said that covid was an upsetting time and she was upset to see another person going through what the complainant went through and said she did not hear the complainant saying if the garda came she would show them the exemption.

The complainant gave details of what she referred to as a recently published case by Kester Disability Rights UK around mask wearing and persons with disabilities to support her complaint. 

Preliminary Issue #1:

The respondent submitted that the name on the ES1 was incorrect, and that the complainant had identified the wrong respondent and therefore, they did not reply to it. They submitted that the address on the ES1 was correct.  The respondent submitted what the correct name of the respondent should have been.

Preliminary Issue #2:

The respondent had no objection to anonymising the decision or anonymising the complainant’s medical condition.

Substantive Issue:

The respondent submitted that SI 296 of 2020(Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 was in place at the time.  The respondent disputed the complainant’s interpretation of this SI, namely that it was sufficient to just say that you are exempt, and that the complainant should then be able to enter the premises.  The complainant was never asked for personal information and a letter from a qualified medical person that confirmed the exemption would have been sufficient, but the complainant refused to provide this.  The complainant was at no time asked to disclose her medical condition.  It was submitted that the SI was silent as to how exemptions were to be dealt with in practice.  The respondent submitted that it is not for them to determine if the complainant has a medical condition as they are not medically qualified.  The respondent did not know and could not have reasonably known that the complainant was considered a “disabled person”.  No facts have been established from which discrimination may be inferred.  Furthermore, the complainant was allowed to enter the store and did make purchases and staff made efforts to deal with the matter as discreetly as possible.  The entire interaction could have been avoided if the complainant produced the medical exemption, but she did not.  The respondent submitted that the case law cited by the complainant has no significance as it is outside the relevant jurisdiction.  The respondent provided their own transcript of the recorded incident.

Evidence of Mr B was that on the day in question he was paged by Mr D who said that a customer did not have a mask on and was using the toilets.  He said he waited and tried to explain to the complainant that everyone must wear a mask and she said she did not have to.  It was his evidence that Ms A had a threatening manner and told him he would go down in history for the wrong reasons.  He told the complainant going forward she would need proof.  He denied refusing her entry and said she told him the policy about masks was nonsense.  Mr B said in all his 30 years of retail he has never had such a confrontation.

Evidence of Mr C was that he received the ES1 but did nothing with it as another person was also named on it and he did not recall if he ever asked this other person about it.

Case law cited included Karen Bradford v Parkgrove Ltd Adj 34377, Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64, Dorin Dusa v Heatons Unlimited Company Adj-00031386.

The complainant submits that she was discriminated against by the respondent and that owing to special circumstances of a medical condition that this decision should be anonymised.  The respondent had no objection to anonymising the decision, submits that they are not the correctly named respondent, did not therefore, respond to the ES1 and that the complainant was not discriminated against.

Preliminary Issue #1

The respondent submits that an incorrect legal name was used by the complainant.  The complainant seeks to amend the name of the respondent and submits that the respondent attended the hearing, confirmed the address of the ES1 was correct and, therefore the ES1 must have been received and there is no prejudice on the parties to correct the name.  Superior Courts have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings in which parties are improperly named. 

In considering this issue I note that the Respondent attended the hearing with witnesses, was legally represented at the hearing, confirmed the address of the respondent was that where the ES1 was sent, and it would appear received by Mr C. The Respondent also provided a submission at the hearing and was well prepared to meet the challenge of the Complainant’s case.  I note that the Respondent did not make clear why the Respondent might be prejudiced by correcting the WRC form and that the WRC forms are not statutory forms.  For all the above, I decide I can amend the name of the Respondent on the complaint referral form to reflect the correct title.  Accordingly, I find that I have jurisdiction to investigate the present complaint.

Preliminary Issue #2

WRC hearings involving the administration of justice except for those for disputes under s.13 Industrial Relations Act 1969, are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.  It is set out on the WRC website,

‘Special circumstances may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc”.

Following an adjournment and consideration of the complainant’s application and noting that the respondent had no objection to same, I regard the complainant’s health reasons as special circumstances and advised parties that the decision would, therefore, be anonymised.

Substantive Issue:

The complainant gave evidence that she was discriminated against on the grounds of disability and the failure of the respondent to provide reasonable accommodation.  She submitted that she is medically exempt owing to post traumatic stress disorder and that she has a medical document that confirm her exemption.  The respondent submits that the complainant did not show any exemption, that she was able to purchase goods she wished to purchase, her child was allowed to use the restrooms when requested, they did not discriminate and that their policy met the requirements in place at the time, during Covid-19.

3.—(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—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(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”),

Under Section 4 discrimination includes

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 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination. 

The Complainant submitted that she suffered from PTSD and provided details from her therapist and a letter from her doctor, and I am satisfied that the Complainant suffered from PTSD and therefore, has a disability as defined under the Act.

The complainant confirmed that the Complainant did not produce documentary evidence on the day when challenged upon her statement of being exempt under the regulations.  Audio was provided which parties requested I listen to and while difficult to hear all aspects of the interaction, parties also provided their own transcripts of this recording.  It would appear that the complainant sounds very upset and annoyed with the respondent’s interpretation and application of the rules and guidelines during the Covid-19 pandemic.  It appeared from the audio that the respondent tried to calm what was clearly a stressful situation for all.

Having carefully examined all the evidence and submissions, I am satisfied that while the Complainant stated that she had an exemption, she refused to provide medical evidence of exemption to the Respondent on the day. I also note that the respondent allowed her child to use the facilities and allowed the complainant to make a purchase while advising her also of what was needed in the future.  A mere proclamation of exemption by the Complainant, without any further verifiable support was not in the circumstances sufficient.  Taking note also that no service was refused to the complainant, I find that the Complainant has failed to establish a prima facie case of discrimination.

In all the circumstances I find that the complainant has not adduced facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.  The complainant has not established a prima facie case of discrimination on the disability ground or for reasonable accommodation in the provision of goods or services and, therefore, I find that the respondent has not engaged in prohibited conduct.

In all the circumstances I find that the complainant has not adduced facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.  The complainant has not established a prima facie case of discrimination on the disability ground or for reasonable accommodation in the provision of goods or services and, therefore, I find that the respondent has not engaged in prohibited conduct.

Covid-19, mask, equal status, disability, reasonable accommodation