Complainant

Respondent

Parties

Alison  Hudson

Dunnes Stores ULC

Representatives

  Self with assistance from Alan Hudson

Deirdre Keane BL instructed by Murphy Condon 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-00049579-001

08/04/2022

This complaint related to an incident which occurred on the 8 October 2021 at approximately 4:45 PM at a large retail store.

The Complainant's case was that she was requested to leave the store for failing to wear a face mask which amounted to discriminated against her in the provision of a service on the grounds of disability and that the Respondent failed to make a reasonable accommodation to allow her to avail of that service. Her case was that the Respondent insisted that she wear a face covering to avail of services when she was medically exempt from doing so. 

The Respondent's case was that the Complainant was barred from the store as she had shouted and been abusive towards its staff.

Evidence was presented to me that the Complainant had worked in the same store in the past. The Complainant's case was that it had nothing to do with this complaint. She worked for the Respondent for six months over 10 years ago. The Respondent submitted that the Complainant had several incidents/altercations with staff members at the store in the past.

The Complainant's evidence was that she was a regular customer at the store for nearly 10 years. Her case was that she entered the store every week without wearing a face mask. Her case was that she had a disability which exempted her from wearing a mask.

On 8 October 2021 she entered the shop as usual and purchased some items in the homeware department. She then continued to the grocery section to make further purchases. As she made her way down the store, she was approached by the store manager. He asked her to put on a face mask. The Complainant told him she was exempt from wearing a face mask to which he replied that she had to wear one in the store. The Complainant explained that she had already made her exemption aware to one of his colleagues on an earlier occasion. She showed him her letter of medical exemption.

Her evidence was the store manager refused to look at the letter and referred to her entering the store wearing a mask. They Complainant disputed this.

The Complainant explained that she became extremely distressed and at that stage she was asked to leave the store.

The Complainant was advised that the store manager would call the Gardai to speak with her and to escort her out of the store.

The Complainant was very upset. She left the store of her own volition. She waited outside to speak with the Gardai. She was later told that the Gardai were not called. The Complainant was very upset at this.

Her evidence was that the store manager was insistent that she wore a face mask when entering the store. He referred to an altercation between her and the security manager a couple of weeks/months before on this matter. The Complainant stated is that "this was somewhat true" but explained that on that occasion the security guard had approached her with a horrible manner regarding wearing a face mask, which upset her greatly. The matter had been resolved to her satisfaction with the intervention of a different store manager. At that time, he had assured her - following an apology - that he had spoken with the security guard and other members of staff and that she would have "no issue going forward in doing her shopping".

The Complainant raised this assurance with the same security manager on the day of the incident the subject matter of this complaint. Her evidence was that he shrugged his shoulders saying that didn't happen and he didn't remember.

The Complainant referred to the CCTV that had been produced to her by the Respondent. She relied on this as evidence that she was not wearing a pink mask. She submitted that she had a red shopping bag in her hand and that was not a mask. Her case is that there was no evidence in the CCTV footage that she was wearing a mask at any stage on entering the store. In her opinion the CCTV was crucial, and it cleared her name in relation to whether she was wearing a mask or not.

She explained that the incident caused her to have a panic attack and she hyper- ventilated. She was very frightened. She was made feel like a criminal.

Under cross examination, the Complainant's disputed that she was abusive and aggressive towards the Respondent’s staff. She disputed she used foul language attributed to her. She disputed that she shouted at the store manager. She accepted that her voice may have sounded elevated, but she was crying and trying to get her point across to the store manager.

She disputed that she said she wouldn't wear a face mask for anyone. She gave evidence that she tried and failed to wear a mask in the past. She said she had at times worn a mask but that she had never worn a mask in the store in question.

The Respondent's case is that the security manager observed the Complainant entering the store without a face covering. The Complainant looked at him and then reached into her bag producing a pink face mask. She walked to the corner of the ladieswear department and while doing so put the face mask over her face.  The store manager observed her in the textile department partially wearing a mask. 

The drapery manager later observed the Complainant in the lingerie section incorrectly wearing a face mask. The drapery manager spoke with the security manager who identified the Complainant as this customer. The drapery manager contacted the store manager and informed him of the issue.

The store manager met the Complainant in the fruit and veg section. He asked her to put back on her mask. The Complainant told the store manager she was exempt from wearing a face mask. He addressed with her that he had observed her wearing a face mask in the textile department a few minutes earlier. At this point the Complainant became angry and told the store manager to "stick your bananas up your …” or words close to that effect.

The Complainant told the store manager that she was not going to wear a face mask for anyone. She then shouted at the store manager at which point he told her he would ring the guards if she continued to be abusive. He walked away from her towards the front door. The Complainant also walked to the front door and briefly exited the store while talking in an animated manner on the phone. She returned to the front door and began shouting again. The security manager who had finished his shift and was leaving for the day observed the Complainant arguing with the store manager at the front door. Sometime later, the Complainant return to the store and complained to a department manager as to her treatment.

The Respondent submitted that it was entirely justifiable to ask the Complainant to put on a face mask to ensure compliance with SI 296/2020 having observed her wearing one earlier. The Complainant replied in the abusive manner, and it was that which led to her being barred from the store. Its case was that the reports from staff members were enough for it to form its decision to bar the Complainant from the store.

It also submitted that it was not aware at the time of the incident that the Complainant had a disability.

The Security manager gave evidence. He said that the Complainant was known to him, though he had not worked with her when she was working in the store.

He said he had dealt with the Complainant on many occasions. He did have occasion in the past to ask her to put on her face mask.

He was clear in his evidence that on the day in question, after making eye contact with the Complainant when she was initially not wearing a face mask, she put on a face mask and he saw her wearing it.

The Complainant did not approach him to identify that she had an exemption from wearing a mask.

As regards the CCTV recordings, I was told that the store had 64 cameras but that they were old and not all the Complainants time in the store was recorded. The evidence was that the CCTV was of limited value. It was noted that there was no CCTV evidence of the Complainant wearing a face mask on 8 October 2021.

The Security manager said that he had spoken with the Complainant as regards the requirement to wear a face mask in the past. He explained the procedure for customers of the store who had an exemption from wearing a face mask. If the Complainant had disclosed her exemption letter to a store manager, he would have been told about it. He denied that he had been put on notice that the Complainant had a disability either directly by herself or from another store manager.

The store manager gave evidence. He said he had been made aware from the drapery manager that the Complainant was in the store without wearing a face mask.

The store manager explained that he approached the Complainant in the fruit and veg department. He asked her to put her mask on. She immediately told him that she was exempt from wearing a face mask. She went to present a letter to him. He said to her that exemption letters were dealt with by security at the front door.  He explained that if a customer had a medical exemption which excused the customer from wearing a mask, this was made known to the security department at the front door. He said that it was securities job to monitor mask wearing.

He said that the Complainant became very abusive towards him. She made a phone call to her mother and started "roaring down the phone". The whole incident was very heated.

The Complainant was known to him. He said the Complainant had been abusive to staff in the past and she had made staff at the checkouts cry.

He disputed that he discriminated her against her. He submitted that she was abusive towards him.

Under cross examination, the manager accepted that he refused to look at the Complainant's letter of exemption. He said he had asked her to leave the store before she went to produce this letter of exemption. He said that he had worked with the Complainant in the store and was aware of previous abusive incidents in the past. He said he had seen her wear a face mask in the past and he was not aware that she had an exemption. Nobody in the Respondent's employment had advised him that the Complainant had a letter of exemption.

He said the procedure for dealing with facemasks is that a customer would inform the security staff at the front door of the exemption and on that basis, they would gain access to the store without wearing a mask. He said that 10,000 people per week entered the store and at the time of the incident they were 120 people in the store.

He explained that a minute number of customers had notified the store of their exemption from wearing a face mask.

The drapery Assistant Manager gave evidence. She said that she recognised the Complainant. The Complainant was known to her but not personally.

She was working in the menswear department and heard a customer laughing loudly and speaking on their phone. She saw the Complainant partially wearing a face mask, but she had it around her ears under her chin.

The witness checked with security at the front door as she wanted to be discreet and not make an error.

Under cross examination she confirmed that she was aware that the Complainant in the past had been abusive to checkout members of staff.

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

“a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes… (a) access to and the use of any place”

Section 3(1) provides that discrimination occurs,

“..where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2)(g) lists disability as one such ground.

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonableness in this case must take account of the Covid pandemic.

I note that the incident occurred in October 2021, at which point the restriction arising from the Covid-19 pandemic had been in force for a period of approximately nineteen months. Statutory Instrument 296/2020 was introduced on 11 August 2020 and the Complainant obtained her letter of exemption from her GP on the 28 August 2020.

I accept that only a small number of customers on a daily or weekly basis would have attended the Respondent's store without wearing a mask.

The Respondent was entitled to request that the Complainant comply with the regulations or, in the alternative, prove that she was an exempt person within the meaning of Statutory Instrument 296/2020.

I accept the evidence of the Respondent security manager as to the process in which customers registered their exemption from wearing a face covering with the Respondent, namely at the door on entering the store.

I find it difficult to accept the Complainant's evidence that she shopped weekly with the Respondent and didn't wear a mask during those occasions and despite this, her exemption from wearing a mask was not known to the security manager or the store manager.

This is more incredible on hearing that the Complainant worked historically for the Respondent in that store and she was personally known to the store manager and many store staff.

I find that whether the Complainant had registered her letter of exemption with another member of staff 2 – 3 months prior to this incident is not central to the facts of this case. 

On the day in question, the drapery manager, store manager or security manager were not aware that she suffered from a disability and had a letter of exemption from her medical practitioner.

By her own evidence, the Complainant entered the store on the 8 October 2021 and purchased items in the homeware department.

I accept the store managers evidence that on approaching the Complainant in the fruit and veg department and engaging with her as to wearing a face mask, she became verbally abusive to him and it was in relation to this abuse that she was asked to leave the store.

The Respondent is entitled to protect its staff from abusive behaviour and put procedures in place for this.  Section 15 of the Equal Status Acts sets out the exemptions in relation to disorderly conduct.  I note that the Complainants prior behaviour was known to the store manager.  I accept that he was entitled to make the decision he made on the 8 October 2021 and inform the Complainant that he was going to call the Gardai.   

In such circumstances I find that the Complainant did not receive the service she complains of on the 8 October 2021 because of her failure to wear a face mask, but because of her abusive interaction with the store manager.

Having regard to the totality of the foregoing points, I find that the Respondent did not discriminate against the Complainant and did not engage in any conduct prohibited by the Equal Status Acts.

This complaint is not well founded.

Discrimination.  Disability. Face mask.  Section 15.  Disorderly conduct.