Complainant

Respondent

Parties

Sebastian Calugar

 Klubert Trading Limited .T/A  Daly's Supervalu Greystones

Representatives

  Self-represented

 Did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047553-001

08/12/2021

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

CA-00047554-001

08/12/2021

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

The act of discrimination occurred on 13/8/2021.

He submitted his complaint to the WRC on 8/12/2021.

 Evidence of the complainant given under affirmation.

CA-00047553-001. Complaint under Section 21 Equal Status Act, 2000

 The complainant contends that the respondent discriminated against him on the 13/8/2021 when the respondent store manager told him that he could not be in the respondent’s store without wearing a mask.

The complainant told the store manager that he was exempt because of stress and anxiety caused by the wearing of a mask. He told the store manager that he had a disability. The store manager replied, saying, “he could not serve customers without a mask”

There were very few customers in the store at the time. The complainant told the store manager that he could take proceedings against him. The store manager respondent that he should proceed.  His wife, without a mask, was also present, selected items and paid for them at the till.

He requested CCTV footage on the 26/8/ 2021 but did not receive it. The store asked him to submit photo ID to match it with footage from that day. He supplied them with photographic ID but heard nothing further from them.

He sent an ES.1 form to the respondent on 7/10/2021. He received no response to this.

The complainant believes that his inability to wear a mask comes within the definition of disability. The complainant maintains that the stress and anxiety caused to him by him having to wear a mask amount to a disability, prompting the act of discrimination which was the respondent’s refusal to permit him to shop in the store.

The respondent should have provided him with reasonable accommodation by way of an exemption as there were screens between the cashier on the till and the customer. He should have allowed the complainant to identify what he needed to buy, and he could have paid for them outside of the store.

He did not see any policy on mask wearing within the shop.

Upon questioning, the complainant stated that he had not received any prior medical attention for breathlessness or anxiety. He has had very occasional breathlessness before the onset of Covid-19. He does not suffer from Asthma. No further medical attention was required after that date other than for an unrelated accident which occurred in September2021.

CA-00047554-001. Complaint under Section 21 Equal Status Act,2000.

The complainant contends that he was discriminated contrary to section 5 of the Act on the grounds of gender on the 13/8/2021 when the respondent prevented him from shopping in the store because he was not wearing a mask but did not debar his wife from shopping in the store. His wife was not wearing a mask but was permitted to select items and paid for same at the till without any interference.

He received less favourable treatment on the grounds of his gender.

He submitted an ES.1 form to the respondent on the 4/10/2021 but received no response to same.

CA-00047553-001 .Complaint under Section 21 Equal Status Act, 2000

The respondent though notified of the time and date of the hearing did not attend.

CA-00047554-001. Complaint under Section 21 Equal Status Act,2000

The respondent though notified of the time and date of the hearing did not attend.

CA-00047553-001. Complaint under Section 21 Equal Status Act, 2000

I must decide whether or not the respondent discriminated against the complainant contrary to section 5 of the Act in failing to provide goods, service or facilities and in terms of section 3(2)(g) of the Equal Status Acts, 2000-2015 in that the complainant’s claim for an exemption from the Covid Regulations regarding the wearing of a face covering was rejected by the respondent’s store.

I am satisfied that the respondent is a provider of goods within the meaning of the Equal Status Acts.

The complainant also asks that I find that the respondent failed to provide him with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

Relevant law.

Section 3(1) of the Act 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”).

Burden of Proof.

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. These facts must suggest 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.

 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 complainant submitted a medical statement, dated 11/10/2021, which states that he suffers from hyperventilation and anxiety upon donning a mask. The doctor in that same letter states that he should be exempt from wearing a mask.

This letter, dated the 11/10/2021, is not applicable to the circumstances obtaining on the day of the alleged discrimination, said to have occurred on the 13/8/2021.

The complainant merely stated that he was exempt from mask wearing and gave no details to the store manager as to why a mask could adversely affect him or impede him in the purchase of goods.

The complainant presented no other evidence of medical attention being sought or required in relation to the mask wearing in the context of a Pandemic which by this stage had been at large for a period of eighteen months. It is noteworthy that despite the widespread and enduring nature of the pandemic, and despite the fact that mandatory mask wearing had been in force since July 2020, no request for a medical statement was sought until after the incident of the 13/8/2021.

In order to enjoy the protection of the Acts, a complainant must demonstrate that he comes within one of the protected grounds. The complainant has cited the disability grounds.

The absence of medical evidence of a disability at the time of the alleged Act of discrimination on the 13/8/2021, means that I am unable to find that the complainant had a disability within the meaning of section 2 (1) of the Act. Having failed to provide evidence that he is covered by a protected ground, he is unable to enjoy the protection of the Act.

He has therefore failed to raise a prima facie case of direct discrimination and his complaint of discrimination on the grounds of disability cannot succeed.

The complainant asks that I consider the complaint that the respondent omitted to offer him reasonable accommodation by exempting him from mask wearing in the store.

The statutory provisions on reasonable accommodation provide as follows:

“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”.

Again, this provision may only be triggered in respect of a person who is covered by the disability ground.

I have found that the lack of evidence demonstrating the existence of a disability deprives the complainant of the protection found in section 4 above.

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

I find on the basis of the evidence and the law that the complainant has not established a prima facie case of discrimination on the disability ground or for reasonable accommodation in the provision of goods or services and, therefore.

 I find that the Respondent has not engaged in prohibited conduct.

I find that the complainant was not discriminated against by the respondent contrary to section 5(1) of the Act and in terms of section 3(2)(g) of the Equal Status Acts, 2000-2015.

CA-00047554-001. Complaint under Section 21 Equal Status Act,2000.

The complainant contends that he was treated less favourably on the basis of his gender than his wife who though not wearing a mask was permitted to shop and purchase items. His wife did not engage with the manager but with a different store employee.

Discrimination is taken to occur when one person is treated less favourably than another person is treated.

The obligation to establish a prima facie case of discrimination in accordance with section 38(1) also arises in respect of this complaint. The test laid out in in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20, serves as a benchmark against which to establish if the complainant has raised a prima facie case of discrimination on the grounds of gender. That test requires the following conditions:

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 the law to the circumstances of this complaint.

The complainant is covered by the protected ground in that he is male, and the comparator is a female.

He has been subject to specific treatment in that he was he was debarred from purchasing goods in the shop, whereas his wife who was also maskless was not.

The treatment was less favourable in that he was refused access to goods due to his maskless state, impediments not experienced by his wife.

I find that he has raised an inference of discrimination based on these uncontested statements of what transpired on the 13/8 2021.

The onus moves, therefore, to the respondent to rebut the presumption of discrimination.

The respondent chose not to attend and therefore passed up on his right to challenge or confirm the accuracy of the evidence and to offer an explanation, unrelated to the complainant’s gender, as to why he treated the complainant less favourably than his wife.

He failed to rebut the inference of discrimination.

In the absence of a rebuttal of discrimination and in the context of the uncontested evidence of the complainant, I find that the respondent engaged in prohibited conduct and that complainant was discriminated against on the basis of his gender on the 13/8/2021.

I order the respondent to pay the sum of €1500 to the complainant for the effects of the prohibited conduct.

CA-00047553-001. Complaint under Section 21 Equal Status Act, 2000.

The complainant has failed to establish a prima facia case of discrimination on grounds of disability.   I decide 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,

CA-00047554-001. Complaint under Section 21 Equal Status Act,2000.

I decide that the complainant was discriminated against contrary to section 5 of the Act and in terms of 3(2)(a) of the Act. I order the respondent to pay the sum of €1500 to the complainant in compensation for the effects of the prohibited conduct.

Non wearing of a mask; absence of evidence of a disability; gender discrimination.