Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Hairdressing Salon}

Representatives

Paul Kilrane BL  Catherine Murphy & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050110-001

29/04/2022

The Complainant contacted the salon for a hair cut in October 2021.

The Complainant informed the salon about her disability as she has a neck brace and she is medically exempt from wearing a mask in advance of her appointment. She asked the salon to confirm they could accommodate her disability. The salon contacted their HR department and offered an appointment on 23rd October 2021. The Complainant attended the appointment. She requested a dry haircut as she is not able to have her hair washed in the salon. She was seated in the main salon away from the door. She asked for a layered haircut. She informed the salon she was not happy with the cut on 30th October 2021.

She was offered an appointment to remediate the cut on 5th November 2021. When she attended the salon on 5th November 2021, she was given the same seat, but this time the salon door was left open. She asked the hairdresser and another member of staff to close the door, but they refused and pointed to the fact the Complainant was not wearing a mask. The Complainant says the cold is a trigger for some of her conditions. She was told she was putting others at risk. She was told she should have come into the salon at a quieter time. She asked if she would get a proper haircut and the stylist prevaricated.

The Complainant alleges she is being discriminated against due to her disability and the salon failed to provide her reasonable accommodation. She was unhappy with her treatment, felt she had been abused and sought a refund. She had to get her haircut corrected elsewhere which was more expensive.

The Complainant wrote to the salon requesting confirmation the salon would comply with the Act if she attended again, seeking an apology and training for staff to ensure compliance with the Act on 23rd November 2021. She did not receive a reply. She sent a Form ES1 by registered post on 4th January 2022 to the Respondent and did not receive any reply.

The Complainant is seeking compensation for her treatment. She was treated less favourably to other patrons as she was made to sit beside an open door even though she has an exemption from wearing a mask, she was harassed and abused by staff and told she was putting them at risk. The salon did not comply with public health guidelines as rooms should be ventilated at the beginning and end of day, and kept at a comfortable temperature.

The Respondent says the Complainant has not made out a prima facie case of discrimination and failure to reasonably accommodate her disability under the Equal Status Acts 2002-2015. The Complainant has not provided any evidence to show that she could not wear a mask or that she was called upon to wear a mask. The Respondent relies on the decisions in Southern Health Board v Mitchell [2001] ELR, Cork City Council v McCarthy EDA21/2008 and Valpeters v Melbury Developments Ltd 21 [2010] ELR 64.

The Respondent had prepped the Complainant and gowned her for treatment and had provided reasonable accommodation by not requiring her to wear a mask. When all of a sudden, the Complainant became very irate and began saying that she was being discriminated against by the salon’s policy of opening the door of the salon for 5-10 minutes every hour. The Respondent is baffled by the case being made by the Complainant. The Complainant has not produced a certificate of exemption from wearing a mask.

The Respondent says they gave every accommodation to the Complainant. The Complainant attended the salon without a mask and never sought evidence of the medical exemption. The hairdresser gave reasonable accommodation. The regulations at the time required ventilation of the salon for 5-10 minutes every hour. No prima facie case has been made out by the Complainant.

The Respondent relies on ADJ00036016 Caroline O’ Connor v Ciara’s Homestyle and ADJ00034951          George Calin Brebin v Inchdoney Island Lodge and Spa t/a Inchydoney Hotel. In these cases, the Complainant’s cases failed as they failed to produce evidence that they are medically exempt from wearing a mask.

I heard and considered the submissions and evidence of the parties. I am acceding to the Complainants request that this decision be anonymised given the sensitive medical detail it contains.

Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise.

The Complainant alleges discrimination by the Respondent on grounds of her disability in terms of Section 3 (1), S 3 (2) (g) and S4 of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities.

Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (g) provides that as between any two persons, that one is a person with a disability and the other either is not or is a person with a different disability. S4 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.

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant wears a neck brace. She gave evidence that prior to attending the salon for a haircut on 23rd October 2021, she notified the salon she has a serious neck injury, she cannot have her head in a basin, and is exempt from wearing a mask due to breathing issues. The salon replied to say they would check the position with HR. They salon then offered the Complainant an appointment on 23rd October 2021. The Complainant was seated at the front of the salon on 23rd October 2021, and the appointment proceeded without incident. However, on 30th October 2021 the Complainant contacted the salon to complain about her haircut.

The Complainant was offered an appointment on 5th November 2021 to remediate her haircut. The Complainant was placed in the same seat on the second occasion. The door near to the Complainant was opened by a member of staff. The Complainant said she asked for the door to be closed and the first staff member refused as she had been told to leave it open. The Complainant says she then asked the hairdresser to close the door as she was very susceptible to the cold.  The Complainant accepted the hairdresser closed the door somewhat. There is a dispute on the evidence about what was said the Complainant saying she was told by the hairdresser she was putting them all at risk.  The Complainant says she asked would she get a proper haircut or if not wanted her money back. The Complainant was then given a refund and says she was shaken by the incident.

The Respondent says the Complainant was seated at the front of the salon due to her mobility issues which was 6-8 feet from the salon door. The Respondent says the door was ajar, it was not fully open. The temperature was 12 degrees on 5th November 2021. The Respondent says they gave every facility to the Complainant, she attended without a mask and they did not ask for her medical exemption. The return to work regulations required the salon to be ventilated. A few minutes after the staff member refused to close the door, the hairdresser arrived and says she closed the door as soon as she saw the Complainant was worked up. She heard her shouting as she came over. The hairdresser denies saying the Complainant was putting them all at risk. She says the Complainant was only in the salon a few minutes. She thought nothing she would do would be good for the Complainant and gave her a refund.

The Complainant alleges discrimination and failure to reasonably accommodate a disability on 5th November 2021. The Complainant served an ES1 form on the Respondent notifying of the alleged discrimination within two months as required. The complaint form was received by the Workplace Relations Commission on 29th April 2022.

This incident took place during the pandemic when the Respondent was endeavouring to keep staff and customers safe and comply with health and safety law. The Respondent accepted the Complainants attendance in the salon without a mask and accommodated her attendance without raising any issue. They also agreed to remediate the haircut which the Complainant found unsatisfactory. On the second occasion the Complainant attended at the salon there is a conflict of evidence between the evidence of the Complainant and the hairdresser regarding what was said. But the Complainant does accept that when she expressed concern about the door being ajar to the hairdresser, the hairdresser closed over the door.

I am not satisfied that the Respondent discriminated against the Complainant or failed to provide reasonable accommodation for her disability and I find the complaint fails.

The complaint fails.

Prima facie case, discrimination, Covid-19