Complainant

Respondent

Parties

Joe  Butler

Lidl

Representatives

  The complainant represented himself

Sorcha Finnegan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047106-001

10/11/2021

The complainant submitted that when he went to shop at the respondent’s Listowel Store on the 6th.Sept. 2021 ,  he was discriminated against by reason of disability. He asserted that a security staff member approached him and asked him to wear a face covering. It was submitted that the security guard was not interested when the complainant asserted that he had an exemption certificate .The complainant stated that the policy of the security guard was no mask , no service.

The respondent denied that there was any breach of the Act and asserted that the complainant had not established that he suffered from a disability , that he had provided no evidence that that he was treated less favourably than someone without a disability , that the complainant was never denied access to the store nor to the provision of goods and that the complainant had instituted proceedings against the incorrect party .It was submitted that the complainant had an issue with a security guard employed by Bidvest Noonan – an external agent and not an employee of the respondent .

In his complaint form the complainant submitted as follows:

The complainant asserted that his submission should be addressed to the security guard but he was left with no choice but to address it to the Manager as the Security Guard “refused to identify himself and covered his ID badge with his hand “.

The complainant described his arrival at the store – it was their second visit in 3 days and he asserted that there was no issue on the first visit. He stated that his partner had a face covering but he did not as he was exempt. He said he never wore face covering and never would because“ 296 allows for exemptions and that’s the Law”. He said after about 10 mins they were approached by the only security guard in the shop, that the guard had an immediate attitude problem and was quite rude to him. He asked he complainant to wear a mask and when he refused as he was exempt , he contended the security guard ‘s attitude got worse and he demanded that the complainant show him his exemption certificate. According to the complainant he explained SI 296 but the guard was not interested. The claimant said the guard kept insisting upon seeing his exemption certificate – “ His policy was no mask ,  no service and he kept telling me to get out and leave the shop”. The claimant said the guard refused to give his badge number unless the complainant showed him an exemption certificate. The complainant set out their ensuing exchanges – he asserted the guard was not wearing a face mask and that he had no regard for customer safety. The guard was wearing a visor. The complainant said that when he asked for the shop policy on masks the security guard took out his phone and pretended to ring the guards. The complainant said the guard refused to interact with him any further. The complainant said “He has destroyed my confidence when it comes to entering other shops in case I have to put up with that type of abusive discriminatory behaviour in other shops.”

The complainant invoked the provisions of ADJ-00032622 in support of his position and submitted documents from his consultant cardiologist referencing treatment for a coronary angioplasty in 2019.

Summary of Pertinent Evidence of the Complainant:

In his direct evidence the complainant stated that he had sent the ESI form to the Listowel Store within 7-8 days of the event taking place and disputed the respondent’s contention that the complaint was out of time and had been filed against the incorrect respondent. He said he was unaware if the security staff were employees or not – he said as far as he was concerned the guard was employed by Lidl. He was stopped by him and presumed he worked for Lidl. The complainant asserted that by virtue of SI296 he was exempt from having to wear a mask owing to his disability. The claimant gave an account of the potential damaging impact of wearing of a mask had on his heart condition. He referenced a 70% blockage in an artery – he said wearing a mask would endanger his health as it would lead to a reduction in oxygen to his lungs and referenced research by WHO. The complainant asserted that the security guard continued to embarrass and humiliate him and he contended that he had been refused goods and services. He said the shop had no authority to request a customer to disclose sensitive medical information.

It was put to the complainant under cross examination that no medical evidence had been presented to support his assertion that he had an exemption and he was unable to wear a face mask on medical grounds. He asserted he had answered the question already and submitted medical records to the WRC to prove he could not wear a face mask. It was put to him that he had not provided any evidence to support his contention that he could not wear a face mask. It was put to the complainant that in his ES1 form he made no reference to refusal or being denied access to goods , the complainant stated that he had no difficulty in the cctv footage of the incident being viewed. The complainant asserted the guard kept refusing unless I presented a medical certificate. The complainant said he engaged with another staff member at one stage but he was concentrating on the security guard and asked him to stop. When it was put to the complainant that the staff member was trying to diffuse the situation, the complainant said that was not true. The complainant advised that he had 2 other complaints before the WRC which were ongoing. When it  was put to the claimant that his medical notes made no direct reference to face covering, the complainant said it would have been impossible to call his cardiologist – he said the notes provided evidence that he had a heart condition for over 2 years and that the doctor had advised him that wearing a mask could impact on the amount of oxygen getting to his blood. When he was asked if he proceeded to the till, the complainant said that they could not go to the check out as they were told if they did not provide medical evidence they would have to leave and he did not want to embarrass himself any further. The complainant denied that his voice was raised and asserted that the respondent’s witness kept cutting across him when he was speaking with the security guard. The complainant stated that his account proves that he was treated less favourably – he asserted that he was asked to leave and was harassed and that did not happen any other customer.

The respondent’s representative read the following written submission into the record:

1. The Complainant has made a claim of discrimination on grounds of disability pursuant to the Equal Status Act 2000 (“the Act”) relating to the provision of goods and/or services.

2. To succeed in his claim of discrimination on the grounds of disability, the Complainant must make out a prima facie case that, in accordance with section 3(2) of the Act, he was treated less favourably than another person has been treated in a comparable situation on the basis that: a. 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”).

 3. The Respondent denies the allegation of discrimination. The Respondent is a supermarket chain which provide goods to the public. The Respondent’s case is that in accordance with its internal Covid 19 response plan and government restrictions, at the time of the incident complained of, all customers were asked to wear a protective face covering during attendances at the Respondent’s stores. The Respondent advises that a request was made by an external third-party security guard to the Complainant to wear a face mask while in store on 6th. September 2021. After an exchange with an external third-party security guard, the Complainant briefly interacted with a Lidl staff member related to the wearing of masks. The Complainant advised the external third-party security guard that he was exempt but at no stage did he provide any reason for why he may be exempt from wearing a face covering. The Respondent notes that the Complainant was never denied access to the Lidl store nor was he denied access to the provision of goods on 6th.September 2021. In the Complainant’s ES1 Form dated 11th November 2021 which has been furnished to the WRC, he at no stage indicates that the Respondent refused to allow the Complainant to purchase groceries from the Respondent on the date in question. In fact, the Complainant even notes in his ES1 that the Respondent has allowed him to purchase groceries from the Respondent on previous occasions at their Limerick store.

 Background

 4. The Respondent is a supermarket chain which provide goods to the public. The Complainant has made a claim that in the provision of those goods, the Respondent discriminated against him on the grounds of disability. The Complainant’s WRC Complaint Form sets out little detail and in the specifics of complaint, it would appear from the ES1 documentation furnished by the Complainant that the alleged discrimination relates to the following contention: “I have been discriminated against by a person organisation/company who provides goods, service or facilities.”

5. While the Complainant has selected the grounds of disability on the WRC Complaint Form, he has failed to provide details or evidence of discrimination on the grounds of disability. The Complainant further alleges he was treated unlawfully by the Respondent by discriminating against him in the provision of goods and/or services and again fails to set out any substantive evidence of discrimination in that regard.

6. The Complainant does not appear to have ever sent the ES 1 Form to the Listowel store, which is the incorrect entity for the purposes of notifying the Respondent of alleged discrimination or unlawful treatment under the Equal Status Act. Once the Respondent had actual notice of the ES1 Form via the WRC correspondence of the 15th November 2021 and after investigating the matter, a response was sent to the WRC on 14th December 2021 seeking confirmation that the written notification of the Complainant had been sent to the correct name and address within 2 months after the occurrence of the alleged event in question.

7. The Complainant has incorrectly constituted these proceedings by issuing against Lidl – whereas the alleged offence of discrimination against the Complainant relates to a third-party external security company Bidvest Noonan. The Complainant has failed to include Bidvest Noonan in the WRC proceedings and in this instance, the Complainant has named the incorrect respondent in these proceedings.

8. The burden of proof in relation to the Complainant’s claims falls on the Complainant. The Respondent has not had sight of the Complainant’s submission and therefore, furnishes this submission, without prejudice to the burden that falls on the Complainant and reserving its position to make such further submission and/or to adduce such further evidence as may be required to address the complaint of the Complainant.

The Respondent’s Covid 19 Response Plan 9.

As set out in ES 1 Form of the Complaint dated 10th November 2021, the Respondent at all times complied with its obligations in terms of legal requirements and taking all necessary measures to safeguard the health and safety of staff and customers and always in line with best practice. Since the commencement of the Covid 19 pandemic, the Respondent has implemented a series of policies to set out the how the Respondent, as an essential retailer would manage the Coronavirus. The policy was regularly updated to take account of NPHET guidance, governmental regulations, and developments with the Covid-19 virus itself. The Respondent’s policy was communicated to staff members through weekly business letters, employee communication or via the ‘We are Lidl’ App to which all employees have access on their mobile phones.

10. In August 2020, The Health Act 1947 was amended to include a mandatory requirement to wear a face covering in shops pursuant to S.I 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions (COVID-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 (“S.I 296/2020”) and the Respondent was obligated to encourage compliance with the regulations. The Respondent sent internal communications to employees which informed them of the regulations in place and store policy with respect to same.

 11. At the time of the incident which the Complainant complains of (6 September 2021) the policy in place in relation to face coverings was “Face Coverings – Promoting Customer Use In Stores” which had been circulated to employees internally on 28 January 2021. Page 3 of the policy provides: “Please note that the existing Government legislation in relation to face coverings outlines that as an essential retailer we must encourage compliance. In general, the vast majority of our customers have been adhering to these measures. Of course, in certain cases some customers may not be able to wear a face covering on medical grounds, to provide care to vulnerable people or if the person is a child under the age of 13 for example. In these instances, discretion must be exercised.

 However, please note that: * Customers must not be asked for proof of the medical condition as to why they cannot wear a facemask * Customers with a medical condition who cannot wear a facemask should not be refused service or asked to leave the store *Employees must encourage the wearing of facemasks, but any refusal should be dealt with by the police” .

The policy also provided that the Respondent would be launching an integrated external communications campaign targeted to their customers across the country to ensure that they wore face coverings and as part of that campaign, messaging would be communicated via prominent in-store signage, social media posts and TV ad campaign.

 12. It should also be noted that at the time of the incident, in respect of which the Complainant complains, the Covid-19 pandemic was at a particularly concerning phase following a significant peak in early 2021. At this stage, Ireland had commenced the vaccination process amongst the public. However, the number for the population were yet to receive their booster vaccination was relatively low. The Respondent as an essential retailer was providing vital and necessary access to consumer goods and services. Reducing the risks associated with Covid-19 and ensuring a safe environment for staff and customers were a key priority for the Respondent during the period under review.

The Complainant’s attendance at the Respondent’s store

13. The Complainant attended the Respondent’s store in Listowel, Co. Kerry along with his partner, on 6 September 2021 at approximately 4.30pm. Mr.C the security guard of the Respondent’s external third party, security company Bidvest Noonan was on duty at the time. After spending some time in the store shopping, the Complainant was approached by Mr. C(security guard). The Complainant was not wearing a face covering and in line with store policy and the regulations in force at that time, Mr C (Bidvest Noonan Security Guard) approached the Complainant and in a discreet manner requested that he wear a face covering whilst in the store for the safety of himself and others in store. Mr C (Bidvest Noonan Security Guard) engaged with the Complainant in line with Lidl policy for the wearing of face coverings in store. Mr C’s (Bidvest Noonan Security Guard) engagement was also in line with Health Advice and Government Regulations (SI No. 296 of 2020) for the prevention of Covid 19.

14. After Mr C (Bidvest Noonan Security Guard) discreetly asked the Complainant to wear a face mask in store, the Complainant refused. At this juncture, the Complainant become quite agitated and was loudly responding to Mr C (Bidvest Noonan Security Guard). On account of the volume of the Complainant, other customers in the store were noticing the interaction and a Lidl employee Ms.B  walked over to offer assistance. Mr C (Bidvest Noonan Security Guard) proceeded to explain that there is a Lidl Poster at the entrance of the store that clearly indicates that in order to protect Lidl staff and customers, Lidl reserve the right to refuse service if face coverings are not worn. Mr C (Bidvest Noonan Security Guard) further explained that as set out in the Lidl poster at the entrance of the store, should a customer be incapable of wearing a mask due to medical reasons, the customer should inform a member of staff. Mr C (Bidvest Noonan Security Guard) proceeded to point to the entrance of the store to reiterate that this poster is in clear view of all customers and clearly sets out the policy of face covering requesting customers to wear face masks. Mr C (Bidvest Noonan Security Guard) respected the medical status of the Complainant by not enquiring as to the nature of his illness or medical grounds that prevents him from wearing a face covering, however Mr C (Bidvest Noonan Security Guard) did ask for evidence of a medical certificate or exemption confirming that the Complainant was exempt from wearing a facemask in public spaces where government regulations require face coverings to be worn. The poster also alerted customers that face coverings must be worn in the store and advised anyone who was incapable of wearing a mask due to medical reasons to inform a member of staff.

 15. The Complainant did not provide any medical exemption nor certificate confirming he was exempt from wearing a face covering in a public space. In addition, at no stage during the interactions between the Complainant and Mr C (Bidvest Noonan Security Guard) did the Complainant actually provide any evidence of a medical condition that prevented him from wearing a face covering. The Complainant proceeded to threaten Mr C (Bidvest Noonan Security Guard) that he will issue proceedings in court arising from the incident. The Complainant exclaimed to Mr.C (Bidvest Noonan Security Guard) that “I am sure I will win this case as I’ve already done this in other cases”. Mr C (Bidvest Noonan Security Guard) was unable to de-escalate the customer despite his best efforts and informed him that he will have to   call the Gardai. Mr C (Bidvest Noonan Security Guard) also noted to the Complainant that if he is uncomfortable to wear a face covering, he could wear a facial shield/visor. Again, at this juncture, the Complainant did not provide any evidence of a medical condition exempting him from wearing a face covering in a public place.

 16. In a further attempt to de-escalate the incident, a Lidl employee Ms.B stood beside both parties for much of the security guard and Complainant’s interaction, approached the Complainant to establish his concerns and see if Lidl could offer any assistance. At no stage in the brief interactions between the Complainant and Ms. B did the Complainant provide any evidence that he had a medical condition preventing him from wearing a face covering nor did he furnish any evidence of a medical certificate or exemption permitting him not to wear a face covering in a public space.

17. The Complainant was loud and challenging to both Mr C(Bidvest Noonan Security Guard) and Ms. B who were attempting to de-escalate the incident and were not interested in engaging with the Complainant in an argument. By this point, the Complainant had become very argumentative, and Mr C (Bidvest Noonan Security Guard) and Ms. B excused themselves and walked away in an attempt to defuse the situation. It should be noted that at no time during the above incident did the Complainant identify himself as being exempt from wearing a face covering nor as an individual with a disability.

 18. Mr C (Bidvest Noonan Security Guard) proceeded to walk away from the Complainant in order to make a note of the incident and call the Gardai for assistance. The Complainant proceeded to walk around the aisles of the store with his mobile phone in his hand and after a short period exited the store. At no stage did the Complainant proceed to the tills with a view to purchasing any items and at no stage was he prevented or refused an opportunity to purchase items from the Lidl till.

 19. The Respondent was unaware and remains unaware of any medical ground that may exempt the Complainant from wearing a face covering. The Respondent strenuously denies that the Complainant were treated in a manner that was in any way different to the usual practices of the Respondent company in relation to the requirement to wear a face covering. The Respondent accepts that the Complainant were dissatisfied with their experience in the Lidl Listowel store on 6 September 2021 but absolutely reject that the application of the Respondent policy and legal requirements was in any way discriminatory.

 Legal principles

20. The Complainant’s claim is that he was discriminated against on the grounds of his disability. Disability

21. The Equal Status Act, Section 2, defines disability as follows: “’disability’ means— 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, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.

22. The Respondent has not yet had any evidence of the disability which the Complainant alleges to suffer from and reserves its position in respect of accepting that the Complainant suffers from a ‘disability’ within the meaning of the Act. Discrimination on grounds of Disability

23. It is submitted that as per the Equal Status Act 2000 the following legal principles are applicable: 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)                 (ii) existed but no longer exists,

(iii)               may exist in the future, or

(iv)                (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”

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.

 14. - Nothing in this Act shall be construed as prohibiting (a) the taking of any action that is required by or under— (i) any enactment or order of a court,

 24. It is submitted that the law is well settled that when a Complainant alleges discrimination, the Complainant must first establish facts from which a prima facie case of discrimination can be made, and if such prima facie case is made out, it then falls to the Respondent to rebut the presumption of discrimination that arises.

 25. It is noted that there have been a number of recent decisions which relate to complaints similar to the within complaint (i.e. that a Complainant was discriminated on grounds of disability following a request to wear a face covering).

 26. In the case of Anthony Lyttle v Buy Wise Discount Store, ADJ – 00032493, the Complainant claimed he was discriminated against on grounds of disability when he was refused entry to a grocery store after refusing to wear a face mask. The Complainant advised that he had a medical exemption which excused him from wearing a face mask but when the Respondent asked for sight of same, the Complainant refused to produce the exemption. In her decision, Orla Jones, Adjudication Officer, found the Complainant had failed to establish a prima facie case as he had failed to provide evidence of a disability.

“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.

 The Complainant advised the hearing that he is a person with a disability. The Complainant advised the hearing that he suffers from ‘claustrophobia’ and that it is triggered by covering her face. He stated that covering her face causes him anxiety…

 In addition to being satisfied that the Complainant suffers from a disability, I must also be satisfied that the Respondent was aware of such disability and that the Respondent treated the Complainant less favourably on grounds of that disability and/or failed to provide the Complainant with reasonable accommodation for such disability.

 The Respondent advised the hearing that the Complainant had not advised them of any disability. The Complainant when questioned as to whether he had advised the Respondent of the existence of a disability stated that he did not believe that he had to provide any reason other than to state that he had a reasonable excuse for not wearing a mask. The Complainant in this case submitted a claim to the WRC on grounds of disability claiming that he was discriminated against on the ground of disability.

 The Complainant asserts that he was treated less favourably on the grounds of her disability and in respect of a failure to provide him with reasonable accommodation for that disability. The Complainant is thus required to demonstrate that a prima facia case of discrimination exists…

 I find that the Complainant in this case has provided no evidence/documentation in relation to her disability. I find that the Complainant has also failed to provide any evidence in support of her assertion that he was treated less favourably by the Respondent on grounds of a disability or that the Respondent failed to provide him with reasonable accommodation for such disability.

27. In the case of Slawomir Tompalski v. T. O’Higgins Homevalue Hardware, ADJ00032638 , the Complainant’s case similarly failed due to a failure to provide medical evidence in support of her claim of suffering a disability. In her decision, Janet Hughes, Adjudication Officer, explained in detail the requirement to provide medical evidence to support a claim of discrimination on the grounds of alleged disability. Ms. Hughes noted that while one might well be exempt from wearing a face mask for medical reasons (and referring to S.I. 296/2020) this does not excuse a person who brings a claim under the Equal Status Act 2000 from providing medical evidence in support of her/her claim of disability discrimination.

 28. In the case of Bernard Carberry v T. O` Huiginn & A Comlucht Teoranta T. O` Higgins & Co. Ltd, ADJ-00032055, upon entering the Respondent’s retail store, the Complainant had been asked by security to wear a face mask. The Complainant refused to do so on the basis that he was exempt due to medical conditions. The Respondent refused to assist the Complainant unless he provided proof of the exemption. The Complainant left the premises and later returned with a copy of S.I. 296 of Government Regulation 2020 referencing the part that mandates the wearing of facemasks on certain premises, and in particular section 5 that deals with reasonable excuses/exemptions. In her findings and conclusions, Janet Hughes, Adjudication Officer noted as follows: Adjudication ref: ADJ-00035913 Complaint ref: CA-00047106 12 “The references to various statutory instruments as set out by the Complainant suggest that he was very well versed in these matters, almost certainly more than most members of the public. Indeed, her reference to and submission on a medical review and submitting a requirement for peer reviews suggest that the public health guidelines regarding the wearing of a face covering were a matter of keen interest to him. Be that as it may, the Respondent is certainly not required to justify public health guidelines per se, specifically the requirement to wear masks, he has as much say or control over such guidelines as the Complainant, which I suggest is very little given these instruments of public health policy were decided by Government Advisers and Ministers, as is well known. That the exemption aspect was unclear as to the Respondents rights in the matter was probably not particularly helpful to businesses in her position or her staff who were trying to enforce the regulations. That conclusion still applies that is it not the role of an Adjudication Officer in the WRC to interpret a statutory instrument issued by a Government Department under legislation which does not fall within the domain of the WRC. That would be a matter for another forum. In any event, the complaint here is not the contents of the Statutory Instrument but that the Respondent in this case discriminated against the Complainant on grounds of disability. And this fact goes to the heart of the case and the defence”. Ms. Hughes, in her decision, set out that it follows from all the extracts from the legislation that the first requirement in any case where a person is claiming discrimination is that the Complainant who is claiming discrimination on grounds of disability must be able to provide facts to which will satisfy at least one of the criteria which define disability under the Act. The decision provides that to prosecute a claim of discrimination on grounds of disability under the Act, the person must be able to demonstrate that they have a disability and, if required to do so, they must be able to provide evidence to support that claim. The Complainant would also need to show that the Respondent had knowledge of the Complainant’s disability at the time of the alleged breach.

 29. In the case of Caroline O’Connor v Ciara’s Homestyle, ADJ-00036016, the Complainant claimed that she was discriminated on the grounds of disability in circumstances where the Respondent denied her access to services unless she wore a mask. The Complainant had advised the Respondent that she did not require a face mask as she had a medical exemption. When asked for proof of the exemption, the Complainant referred to Section 5 of S.I. 296 of Government Regulation 2020 where it stated that if a “Reasonable Excuse” can be provided the person is exempt from the mask wearing requirement. In his decision, the Adjudication Officer, Michael McEntee referred to the earlier decision of Ms Hughes in ADJ-00032055 and the differences between dissatisfaction with S.I. 296 2020, a governmental legal regulation and a valid legal discrimination. Mr McEntee concluded that the complaint was not well founded and failed on the basis that no satisfactory proof of a specific disability as defined by the Equal Status Act was ever established. Mr McEntee further concluded that a verbal assertion of “I am exempt” is not adequate proof of a disability for the purposes of an Equal Status complaint.

 30. In the case of Catherine Winston v Lenehans, ADJ-00033445, the Complainant attended the Respondent store and when asked to wear a mask, she responded that she was exempt and later returned to the store and produced a letter of exemption. The Complainant’s complaint failed as she did not provide any information in relation to her medical condition, to the Respondent or to the WRC. In her decision the Adjudication Officer, Niamh O’Carroll, noted the following: “For the Complainant to state “I am exempt” is not sufficient. There are other grounds set out in S.I. 296/2020 which may exempt someone from wearing a face covering that do not amount to a disability. If someone seeks to rely on an exemption set out in S5 (a) (i) and/or (ii) in a discrimination claim on grounds of disability, they must disclose at the very least evidence of their exemption, at the material time. At the time the Complainant came back to the store with her letter of exemption she was not availing of goods and/or services, so whether or not she showed the actual letter to the manager at that stage is not relevant. I also note that the Complainant was not actually denied access to the shop and was not prevented from doing what she came to the store to do.”

 31. In the case of Amanda Dobson v Mullingar Specsavers Ltd, ADJ-00033635 (see Appendix 11), the Complainant had attended at the Respondent’s premises for the purposes of having her eyes tested. The Complainant was asked to wear a face mask but refused on the grounds of having a medical letter to say she could not tolerate same. The Complainant stated that matters became heated when she said she was not required to wear a face mask and had a medical certification. She said she started to record the interaction on her phone at this stage. The Complainant was then asked to leave the Respondent’s premises. In his decision, Brian Dalton, Adjudication Officer, noted that the manager had an obligation to engage with the Complainant under S.I. 296/2020 and that the manager had attempted to do so. “The Complainant has not made out a prima facie case that she was discriminated against because of her disability. The Optician in fact was accommodating patients and new clients who had a reasonable excuse not to wear a mask with appointments. The manager was obligated to engage with the Complainant. The operative cause of the Complainant being asked to leave the shop related to the manager’s concerns relating to her right to privacy and possible posting of the recording on social media.”

Application of Legal Principles to within case

32. The complaint before the WRC is not concerned with the contents of S.I 296/2020 but that the Respondent in this case allegedly discriminated against the Complainant on grounds of disability. It is submitted that in the within case, the Complainant has yet to establish that he suffered from a disability within the meaning of the Equal Status Act 2000 at the time of the alleged incident. It is submitted if the Complainant had a medical exemption, excusing him from wearing a face mask, the test for such an exemption is a separate and distinct test to the test for “disability” as set out in the 2000 Act.

33. Without prejudice to the foregoing, the Complainant has failed to provide evidence that he was treated less favourably than someone without a disability was or would have been. The Complainant was not treated less favourably, or indeed any differently, from the way the Respondent treated any customer who did not wear a face covering in its stores. It is respectfully submitted that the Complainant’s claim pertaining to disability should fail automatically.

34. It is noted that in this case that the Complainant was never denied access to the Lidl store nor to the provision of goods to the Respondent.

35. The Complainant has constituted the proceedings against the incorrect party. The Complainant at all times had an issue as set out in detail in his ES 1 Form with the security guard of Bidvest Noonan, who is an external agent and not an employee of Lidl. At no stage within the Complainant’s ES 1 Form does the Complainant reference an employee of Lidl.

36. It is further submitted that the Respondent’s requirement for customers to wear face coverings during the period under review was a legitimate and genuine measure that had been put in place to protect customer and staff safety during the height of the Covid pandemic. The measures in place were set out in S.I. 296/2020 and in line with governmental and NPHET guidance. It is submitted that it was not unreasonable or discriminatory for the Respondent or the personnel of the Respondent to take reasonable steps to engage with persons entering the shop to inform them of the requirements to wear face coverings; to promote compliance with regulations and to understand why individuals were not wearing face coverings.

 Conclusion 37. The Respondent submits that the Complainant was not subjected to discriminatory treatment contrary to the Equal Status Act 2000. It is submitted that the Complainant has failed to particularise or to establish any facts or evidence to ground her claims, such that the burden of proof would shift to the Respondent under the Equal Status Act. It is respectfully submitted that the Complainant’s claim should fail. The Respondent reserves the right to make such further submission and/or to adduce such further evidence as may be required at or following the hearing of the matter, whether in response to a submission on behalf of the Complainant or otherwise.

The respondent’s representative asserted that the respondent never received notification of the complainant’s complaint and first became aware of the complaint when contacted by a firm of solicitors with respect to a hearing date on the 5th.July 2022.There was a typographical error when the WRC endeavoured to correspond with the respondent. It was submitted that the complainant had failed to submit his ES1 to the correct address Lidl Ireland GmBH  in Tallaght .It was further submitted that the complainant had filed the claimant against an incorrect respondent as the complaint had not been served on the security guard who was not an employee of Lidl but of Bidvest Noonan. Notification of the ESI was not received until the 10th.Novemver 2021 and it was submitted that consequently the complaint was statute barred and out of time. The representative asserted that the complainant had failed to identify a comparator.

Summary of Pertinent Evidence of Respondent’s Witness Madalena Brzyskievicz

In her direct evidence, the witness said she could hear the conversation between the complainant and the security guard getting louder and louder and that was why she asked the claimant if she could help. She said she was ignored by the complainant – she said he told her to step back and that he was speaking with the security guard right now. The witness said the security guard was trying to calm things down, that he was talking very quietly in an effort to be private but that the complainant was speaking very loud and the customers stopped shopping and just listened. The witness said she heard the security guard trying to calm the situation and drew the attention of the complainant to the posters which referred to the store policy on mask wearing. The witness said she did not stop the complainant from shopping and when asked if any of her colleagues did she replied she did not notice.

 On the 27th.April 2023, the complainant clarified his position regarding access to viewing the cctv footage of his attendance in the store and requested that the decision be made with or without the footage.

Preliminary Matter of Jurisdiction.

The respondent has submitted that the complainant failed to identify the correct respondent in his complaint form by identifying the store Lidl as the respondent as opposed to the security guard who was employed by Bidvest Noonan.

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

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;

“sexual orientation” means heterosexual, homosexual or bisexual orientation;

“Traveller community” means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.

(2) In this Act, unless the contrary intention appears—

(a) a reference to a section or Part is to a section or Part of this Act,

(b) a reference to a subsection, paragraph or other subdivision is to the subsection, paragraph or subdivision of the provision in which the reference occurs, and

(c) a reference to an enactment is to that enactment as amended by or under any other enactment, including this Act.

Section 2 of the Act defines goods as:

“goods” means any articles of movable property

While I acknowledge that in his complaint form – which is not prescriptive – the complainant states “this should be addressed to the security guard who discriminated against me”, he also alleged “I have been discriminated against by a person, organisation /company who provides goods, services or facilities. “The substance of the complaint is that the complainant was discriminated against on the grounds of disability when he entered a retail outlet to shop for goods. I am satisfied that in naming the retail outlet of the store, the complainant cannot be deemed to have identified the incorrect respondent. Accordingly, with respect to this jurisdictional point, I am satisfied that I have jurisdiction to investigate this complaint.

 With respect to the second jurisdictional point, I reviewed the evidence presented by the complainant and I am satisfied that in sending the ES1 to the Listowel Store on the 15th.September 2021, the complainant met the requirements set out under the Act and accordingly I am satisfied that I have jurisdiction to hear the  complaint  .

Having reviewed the evidence and submissions presented at the hearing as well as the authorities relied upon,  I must now determine if the respondent discriminated against the complainant on the grounds of disability when he entered the store on the 6th.Sept. 2021.

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

(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)’’

Section 3(2)(g) provides 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 that the burden of proof is: " 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.

It is submitted that the complainant is a person with a disability for the purposes of the Act.   Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “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 complainant advised the hearing that he is a person with a disability.   The complainant submitted medical records to the WRC in relation to a heart condition. While the complainant articulated his own opinion that the wearing of a face mask would exacerbate his medical condition,  no medical evidence was presented to support this contention. As far as the claimant was concerned he will never wear a face mask as “SI296 allows for exemptions and that’s the law”. It is clear from the complainant’s   own account of his visit to the store that he did not disclose details of his disability to the security guard at the store on the day.

The complainant contends that he was treated less favourably on the grounds of his disability – accordingly he is required to demonstrate that a prima facie case of discrimination exists. Given that the respondent was unaware of the complainant’s disability, I find that no evidence has been advanced to ground a complaint that the complainant was treated less favourably because of a disability. I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of disability.

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