Complainant

Respondent

Parties

Karl Byrne

Bidvest Noonan (ROI) Limited

Representatives

  Self – represented

 Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043058-001

14/03/2021

The complainant has submitted a complaint that the respondent discriminated against him on the basis of his disability and contrary to the provisions of the Equal Status Acts 2000-2015.

The act of discrimination occurred on the 1/10/2020.

He submitted his complaint to the WRC on 14/3/2021.

The complainant contends that the respondent discriminated against him on the 1/10/2020 when a security officer employed by the respondent denied him access to the Stephen’s Green shopping centre.

Evidence of the complainant given under affirmation.

The complainant states that he has a disability which permits him to forego the wearing of a mask. He submitted a copy of a letter from a doctor at the hearing describing the nature of his disability.

On 1/10/2020 when accessing the shopping centre, he was stopped by a security officer who pointed to his face and told him that he would have to wear a face mask. The complainant told the security officer that he was exempt to which the security officer replied that he should produce medical evidence of this exemption. He was very distressed by this encounter and believes that the security officer had no business or right to ask him for a doctor’s letter. He did not consider the impact of his decision on a person with a disability. The security officer went way beyond what any rules or regulation required in the circumstances. The security officer then went on to accuse him of being belligerent. The security officer called the Gardaí. The Garda told the complainant that he should have medical evidence of an exemption. They threatened him with a public disorder charge.

He submitted an ES.1 Form two weeks later. Thereafter he was not asked to wear a mask.

He cited S.I. No. 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations, 2020. Regulation 5 allows for reasonable excuse or an exemption from mask wearing. He states that there is no law or rule which enables a security officer to insist that shoppers wear masks upon entering the centre. The complainant is not required to share private medical evidence with a security officer in a shopping centre.

Cross examination of the complainant.

The complainant stated that mandatory mask wearing was not discrimination against all people with a disability, but he and many other people with a disability have suffered discrimination due to the imposition of mask wearing as this disproportionately affects persons with a respiratory disability. The complainant maintains that the security officer had been brainwashed by propaganda. The respondent had failed to train him in manging such situations. 

The respondent failed to accept the complainant’s exemption.

The respondent denies that they discriminated against the complainant contrary to the provisions of the Acts.

The respondent was not on notice of the complainant’s disability when he was asked to wear a mask nor did the complainant supply any medical evidence or explanation on the day in question, the 1/10/2020, as to his disability.

Evidence of the Security officer given under affirmation.

The security officer was working in the shopping centre 1/10/2020. When the complainant entered the Centre, he pointed to his face and advised the complainant to wear a face mask.

The complainant kept insisting that he should not be asked to wear a face mask. He was very aggressive and belligerent, he would not listen. The witness called the Gardai. The complainant filmed this exchange on his phone.

It is correct that previously the Centre and security staff had not insisted on masks, but Gardaí had called and asked the centre and the respondent to encourage shoppers to wear face masks. He did not block his entry. On that same day he asked about 30 people to wear masks. The witness was totally unaware that the complainant had a disability.

The complainant, did, at a later point tell the respondent that he had a breathing difficulty. After having been notified of this fact, the witness did permit the complainant to enter the centre

Cross examination of the witness.

The witness stated that he called the Gardai because the complainant became very aggressive and belligerent when the witness asked him for medical evidence.

I must decide whether or not the respondent discriminated against the complainant on grounds of disability in failing to provide goods, service or facilities in terms of sections 3(1), 3(2)(g) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

Relevant law.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

“(a) 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) goes on to state that as between any two persons, the discriminatory ground of disability arises where

“(g) .one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”).

In any case of discrimination, the first step for a complainant is compliance with Section 38A (1) of the Act. It provides that the burden of proof rests with the complainant and means 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."

It requires the complainant to establish, in the first instance, facts upon which he/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 Equal Status Acts.

In order to show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20, and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

 Application of above statutory provisions to the circumstances of the instant case.

The complainant submits that he is covered by the discriminatory ground in that he was denied a service due to his disability.

Section 2. (1) defines disability 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 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 medical evidence which the complainant submitted demonstrates that he does have a disability within the meaning of section 2 of the Act.

It is accepted that the specific treatment -the complaint’s access to the shopping centre was arrested due to the absence of a mask.

The complainant contends that the treatment was less favourable than that accorded to a person without a disability or with a different disability. The uncontested evidence was that the security staff stopped about thirty customers seeking access to the centre and asked then to wear masks. No evidence was submitted to demonstrate that a person without a disability or with a different disability was spared the request to don a mask or, in its absence, spared the requirement to show medical evidence of an exemption.

The written evidence submitted on behalf of the respondent was that the shopping centre was intensifying their message to all staff to insist on masks or evidence of medical exemption in the absence of masks. By now mask wearing had become mandatory in innumerable locations including shopping centres.

The complainant presented no evidence of less favourable treatment relative to a person without a disability or with a different disability.

He has therefore failed to raise a prima facie case of direct discrimination.

It is necessary, also, to consider the alleged failure of the respondent to offer the complainant reasonable accommodation by allowing his unfettered and maskless access to the shopping centre.

Statutory provisions on reasonable accommodation.

‘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.”

It is the complainant’s position that the respondent should have permitted him to enter the Centre, maskless, so that he could not access the Centre and complete whatever business he had there.

The uncontested evidence is that the complainant merely stated that he was exempt from mask wearing and gave no details as to why a mask could adversely affect him or prevent him purchasing goods. His emphasis was on his belief that evidence of an exemption was needlessly intrusive, was surplus to requirements and that regulation 5 of S.I 296/2020 relieved him of the obligation to wear a mask.

 But his complaint must be adjudged under the Equal Status Acts and not under a statutory instrument which does not come within the jurisdiction of the WRC.

The medical statement submitted by the complainant’s doctor dated 17/8/2020 does not state that he should be exempt from having to wear a mask.

The evidence is that the respondent was not on notice of the complainant’s disability when they arrested his passage into the Centre, nor did he provide then with medical evidence of a disability or an exemption.

On the basis of the evidence, I do not find that this incident is evidence of a failure to provide reasonable accommodation.

I do not find that the respondent discriminated against the complainant contrary to the provisions of the Equal Status Acts 2000-15.

I find that the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015.

 I find that the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment.

Lack of prima facie evidence of discrimination on the grounds of disability