Complainant

Respondent

Parties

Frank  Whelan

Stauntons Life Pharmacy  Limited

Representatives

  Self

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049628-001

11/04/2022

The Complainant attended at the Respondents pharmacy shop on 22 October 2021. He was not wearing a face mask. He informed the staff that he was exempt from doing so. He was questioned on this exemption. This made him nervous and anxious. He left the shop.

He sent an ES1 form to the Respondent on the 17 December 2021.

The Respondent replied on the 30 January 2022.

The Complainant lodged a complaint on the 11 April 2022 with the WRC.

The Complainant's case was that he entered the pharmacy on the 22 October 2021. There was no signage requiring customers to wear a mask. He sanitised his hands and stood in line behind another customer waiting to be served. He noted that that the customer was not correctly wearing a face mask in that the mask was not covering his nose.

The Complainant asked the shop assistant for a pharmacy product. In reply she asked him if he had a face mask. He advised her that he did not have a mask. She offered him one to which he replied "no thanks, I am exempt from wearing a face covering". The shop assistant asked for proof that he was exempt. He declined to provide this to her and explained "it contains confidential personal information between my doctor and myself".

The shop assistant said she would get the pharmacist to speak with him.

The Complainant's case is that at no stage did she provide a service to him.

The pharmacist then approached the Complainant and asked all the same questions. The Complainant felt intimidated, nervous and embarrassed as there were other customers in the shop.

The Complainant answered the questions with the same replies he had given to the shop assistant.

The pharmacist informed him that he " had to wear a mask as it is the law".

At that stage the Complainant asked the pharmacist was she refusing him service. The pharmacist then asked him "what can I get for you".

The Complainant explained that with all this questioning, he was getting very nervous and anxious. The only thing he could think of was to leave the shop to get away from the confrontation.

At the hearing, the Complainant provided a letter from his GP. This letter was undated. When questioned, the Complainant stated that the letter was obtained from his GP a month or so before the incident in question.

At the hearing, the Complainant explained that he didn't show this letter of exemption to the pharmacist or the shop assistant because "he wanted to keep his medical data private". He did say that he informed the Respondent that he was exempt on two occasions verbally.

The Complainant said he would have appreciated if the Respondent "took his word" as regards as disability.

He said he would have shared it with the Gardai if requested.

The Respondents case was that the wearing of face coverings was set out in SI number 296 of 2020. By law, it was mandatory to wear a face covering in shops (including pharmacies) at the time the Complainant visited the Respondents premises on the 22 October 2021.

The Respondent pointed out that the Complainant had no supporting report or documentation to support his claim that he had a disability and was exempt from wearing a face covering.

They explained that they had issues with customers who were unable to wear a face covering in the past, but these customers did provide a letter of exemption.

The Respondent queried why the Complainant didn't use or share the letter of exemption if he had one at the time. It noted that there was no date on the letter of exemption provided at the hearing. The Respondent pointed out that any information shared in a pharmacy setting was confidential.

The Pharmacist said she felt she had been as kind and understanding as she could have been in the circumstances. She had tried to deal with the situation within the health guidelines that were in place at the time. She gave evidence that there were signs in the pharmacy and that they operated social distancing.

She asked the Complainant to provide evidence to her that he was exempt from the statutory requirement to wear a face covering. He would not engage with her. He wouldn't tell her why he couldn't wear the face covering. Because of this, there was no way to ascertain what his disability was.

The pharmacist also said that the Complainant was talking over her.

The issue for decision is whether or not the Respondent discriminated against or harassed the Complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.  In reaching my decision I have considered all of the submissions, oral and written, made to me in the course of my investigation, as well as the evidence at the hearing.

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 can rely in asserting that the prohibited conduct has occurred.

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 was providing a service within the meaning of the Equal Status Acts.

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….”.

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 at the time of the alleged incident and that the Respondent treated the Complainant less favourably on grounds of that disability.  

The Complainant advised the hearing that he went to the Respondent’s pharmacy shop on 22 October 2021 he told the Pharmacist and the shop assistant that he was exempt under medical grounds.  I note that the Complainant in this case by his own admission stated that he had not disclosed details of his disability to the Respondent.

I am satisfied that while the Complainant stated he has an exemption from wearing a face covering, he did not provide medical evidence at the time to the Respondent that he had a disability and therefore the Respondent was not on notice of any disability.   He had only made an unsubstantiated assertion that he was exempt from wearing a mask. In such circumstances I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability.

This complaint is not well founded.

Discrimination. Disability. Face mask