Complainant

Respondent

Parties

Noel  Hanley

Woodie's DIY Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Kevin Langford, Arthur Cox 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-00044193-001

18/05/2021

The background to this complaint was the Covid-19 pandemic and the Respondent’s requirement that customers wear a face mask on its premises. On foot of his dealings in the Respondent’s store on 16 February 2021, the Complainant has alleged discrimination and harassment on the disability ground and failure to provide reasonable accommodation. The Respondent disputed that the Complainant was suffering from a disability and rejected the complaints on the basis that it was following prescribed regulations which applied in the same manner to all customers including the Complainant.

Section 21 of the Equal Status Act [2000-2018] prescribes that a Complainant shall, “within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence…” notify the Respondent in writing of the nature of the allegation and the Complainant’s intention, if not satisfied with the Respondent’s response, to seek redress under this Act. In this instance, the Complainant stated that he notified the Respondent of his complaint via the ES1 Form on 11/3/2021. The Respondent confirmed receipt of the ES1 on 12/3/2021. The Respondent replied to the ESI Form and the Complainant confirmed receipt of the ES2 reply on 13/4/2021. In the circumstances I am satisfied that the Complainant complied with his obligations under Section 21 of the Act and accordingly I have jurisdiction to hear this complaint.

In support of his contention that he was suffering from a disability the Complainant furnished a letter from his GP dated 27 June 2022. He also provided a photocopy of his Public Services Card on the basis that this indicates he was entitled to free travel because of his disability.

The Complainant stated that on 16 February 2021 at approximately 13.40 he went into the Woodies’s store in Kilkenny and was allowed in without a mask. He stated that when inside he was approached by a member of staff who asked where was his mask. The Complainant stated that he said to this member of staff that he had “a reasonable excuse” not to wear one and that in response, he was advised to leave the store. The Complainant stated that he then asked to speak to the manager.

The Deputy Store Manager spoke with the Complainant and informed him that there were masks in the store which he could use. The Complainant stated that he informed the Deputy Store Manager that he had “a reasonable excuse” not to wear a mask and that when asked by the Deputy Store Manager what this was, he replied that due to GDPR (the General Data Protection Regulation) he did not have to provide this information as it was “private andconfidential”. In this regard, the Complainant maintained that it was unlawful to ask for medical proof for reasonable excuse/exemption.

The Complainant stated that the Deputy Store Manager stated that as he was refusing to wear a mask he would have to leave the store. The Complainant stated that he then left the store but that he wished to speak again with the Deputy Manager and point out that he had been discriminated against. The Complainant stated that the Deputy Store Manager then called the Gardaí but the issue was not resolved as he was told the story’s policy was no mask no entry.

Under cross examination the Complainant disputed and denied that he was abusive or threatening and stated that he wasn’t removed from the store. It was put to the Complainant that there were multiple ways to construct “reasonable excuse” which he accepted but stated that he informed the Deputy Store Manager that he had a medical exemption. Under cross examination the Complainant agreed that he did not disclose any medical reason or medical evidence for his exemption and stated that he had informed the Deputy Store Manager he had a “hidden disability”.  The Complainant was questioned on use of his mobile phone and he accepted that he held the phone in his hand and said he was going to record the Deputy Store Manager but stated that he didn’t actually make any recording.

It is the position of the Complainant that he has a disability, that he said so on 16/2/2021  and that his public services card and GP letter was proof of this. He maintained that he was discriminated against and refused a service on 16/2/2021 and that he was exempt from wearing a face mask under SI 296/2020 and the Equal Status Act [2000-2018]. He stated that he had no option but to leave the store and was left feeling embarrassed, angry, frustrated and humiliated and all because he had a hidden disability.

The Respondent outlined the nature of its business and that it stores were permitted to remain open during the Covid-19 pandemic as they were deemed an essential service. The Respondent stated that at the time of the alleged incident involving the Complainant – ie 16 February 2021 – Ireland was subject to Covid-19 Level 5 restrictions as there was a very high level of infection in the community. As a result, the Respondent stated that the wearing of facemasks was mandatory in all consumer retail premises under SI 296/2020 and that at all times it was motivated to protect the health and safety of its customers and staff.

The Respondent outlined the chronology of events which occurred on 16 February 2021 including the various dealings between its employees and the Complainant. In this regard the Respondent stated that an on-duty Store Colleague first approached the Complainant reminding him to wear a mask and informed him that disposable masks were available. The Respondent stated that when the Complainant said he was exempt, the Store Colleague asked if he had any evidence of this and the Complainant replied that he was under no obligation to provide proof. The Complainant then sought to speak to the Store Manager who was not on duty but the Deputy Store Manager spoke with the Complainant.

The Respondent outlined the Deputy Store Manager’s dealings with the Complainant including her explanations of the reasons why masks were required, her offer of a disposable mask and her direction to the Complainant that he could not shop in the store if he refused to wear a face covering. The Respondent stated that the Complainant became aggressive, shouted at her and threatened her with legal action. The Respondent stated that the Complainant then left the store but asked to speak again with the Deputy Store Manager who went outside and spoke with him accompanied by another Store Colleague. When outside the Complainant stated he had called the Gardaí. The Respondent stated that the Deputy Store Manager felt threatened by the Complainant’s behaviour and that he appeared to record her with his mobile phone. The Deputy Store Manager also called the Gardaí. The Respondent stated that the Complainant produced a plastic card for the Gardaí as alleged evidence of his exemption but this was not accepted by the Gardaí. After some time the Complainant then left the premises.

The Deputy Store Manager gave evidence of her dealings with the Complainant.  She stated that the Complainant invoked several sources in support of his position that he was not obliged to say why he was exempt from wearing a mask, that he never showed her his public services card and that the first she knew of the nature of this card was at the adjudication hearing. The Deputy Store Manager stated that when she asked the Gardaí if the Complainant was exempt because of the card they informed her he was not and that if they had said otherwise she would have accepted that.

In the course of his cross examination of the Deputy Store Manager, the Complainant disputed that he threatened her or was abusive and stated that he was sorry if his behaviour caused anxiety and that he was merely pointing out the consequences of breaching GDPR. In response the Deputy Store Manager referred to the Respondent’s training on Covid-19 and its Safety Guidance Plan.

The Team Leader gave evidence that when outside the store he did not see the plastic card the Complainant produced for the Gardaí. He stated that the Gardaí said the card did not show evidence the Complainant was exempt from wearing a mask in the store.

It is the position of the Respondent that the Complainant has not produced evidence of disability within the terms of the Equal Status Act [2000-2018] nor did he produce any such evidence on the date of the alleged discrimination – ie 16 February 2021. The Respondent stated that as a result the question of discrimination or the provision of reasonable accommodation did not arise. The Respondent further maintained that the Complainant had not demonstrated that he was treated less favourably than another with a different or no disability. In all the circumstances it is the position of the Respondent that the Complainant has not established a prima facie case of discrimination. The Respondent cited section 14 of the Equal Status Act [2000-2018] in relation to its obligations to comply with the provisions of SI 296/2020 and also cited case law in support of its position.

Section 2 of the Equal Status Act [2000-2018] 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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.

Section 3(1) of the Act provides that 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)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons and in that regard, subsection 3(2)(g) provides as follows:

(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 5 (1) of the Equal Status Act [2000-2018] provides that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 (1) of the Act defines “service” as “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……”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he can rely in asserting that discrimination occurred. Accordingly,  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/respond to the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant contends that the Respondent’s insistence on his wearing a face mask on 16 February 2021 was discriminatory on the grounds of disability pursuant to the Equal Status Act [2000-2018]. It is clear there were exchanges between the Complainant and the Respondent’s Store Colleague, Deputy Store Manager and Team Leader on 16 February 2021 on foot of which the Complainant was asked to leave the Respondent’s store because of his refusal to wear a face mask. Arising from my consideration of those exchanges together with the written submissions, documentation and the sworn oral evidence including from cross-examination, I have come to the following conclusions:

-          Whilst both parties cited the provisions of SI 296/2020 in support of their respective positions, the focus of my decision making and jurisdiction is not the provisions or implementation of SI 296/2020. Rather I must decide whether or not the Respondent discriminated against the Complainant on grounds of his disability in terms of sections 3(2) of the Equal Status Act [2000-2018];

-          The Complainant has not identified any comparator who was allowed shop in the Respondent’s store on 16 February 2021 without a face mask. Nor has he shown that the Respondent’s policy on mask wearing was applied in a differential or discriminatory manner towards him;

-          The medical evidence submitted by the Complainant was dated 27/6/2022 which was over a year after the alleged act of discrimination of 16/2/2021. I am satisfied from the evidence including the Complainant’s own statements that no medical evidence was produced on the day of the alleged discrimination. I am also satisfied from the evidence that the Complainant did not furnish the Respondent with his Public Services Card which in any event, does not in my view provide adequate evidence of the Complainant’s disability. As the Respondent was not made aware on 16 February 2021 of any disability suffered by the Complainant, I am satisfied it cannot be deemed to have discriminated against him or to have treated him less favourably on the disability ground, or to have failed to provide him with reasonable accommodation.

In light of the foregoing, I find that the Complainant has not established a prima facie case of discrimination on the disability ground pursuant to the Equal Status Act [2000-2018].

CA-00044193-001

For the reasons outlined this complaint is not well founded.

Disability, Covid-19