Complainant

Respondent

Anonymised Parties

A Complainant

A Telecom Store

Representatives

Sabrina Sullivan The Irish Council for Human Rights

 Sherwin O'Riordan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042148-001

26/01/2021

The Complaint Form was received by the Workplace Relations Commission on 26 January 2021.

Submissions were shared between the parties.

The Complainant gave evidence on affirmation.

The Store Manager and the Store Assistant gave evidence on affirmation on behalf of the Respondent.  

The name of the Respondent was amended at the hearing.

Parties were given an opportunity to present their evidence. Both parties did avail of the opportunity to cross examine.

The Complainant set out her medical reasons for not being able to wear a mask.

The Complainant gave evidence that she attended the Respondent store on 7 November 2020. She met the Store Manager, and they discussed a particular type of phones. The Complainant was given an appointment to come back to the Store, as it was operating on an appointment only basis.

When she returned to the Store at the designated appointment time, when the Store Manager came out with the phone in a bag with the intention of completing the sale. During this point the Complainant was speaking to the Store Assistant who said something to her that she could not understand and asked she repeat herself. The Complainant described the Store Assistant as becoming frustrated with her. The Store Assistant then asked why she was not wearing a mask and was told that the Complainant had already discussed it with the Store Manager, to which she was met with a reply that no one likes wearing them, but we still have to. The Store Assistant prevented the sale of the phone and told the Complainant that the “rules here are not to sell it to you”.  The Complainant asked for a note as to what she needed, and she wrote down her name.

The Complainant described leaving the store and going to the toilets where she became very upset. She had to stop on the way home again due to her upset at the incident. The Complainant described that she suffered health difficulties as a result of the interaction.

Under cross examination the Complainant was asked if she produced a medical certificate on the day. She confirmed she did not but did have a letter before the hearing. Asked whether she was advised to wear a visor , the Complainant confirmed she was, but this was for hospital appointments. It was put to her that she could have worn a face visor and there was no qualification in the letter.

The Respondent’s case was put to her the Respondents were simply abiding by government guidelines. The different account of events was put to her which she denied.

The Respondent submitted after the Complainant’s evidence that she had not established a prima facia case of discrimination.

The Store Manager at the time gave evidence that at the time the store operated on appointment only. She explained that there was a desk at the front of the shop and customers were not allowed to enter. As regards the Complainant, she confirmed she did remember her and as she was not within the store , she had no right to ask about a mask. There was no discussion around an exemption or medical information with the Complainant.

The Store Manager denied bringing a phone from the storeroom. She further denied refusing the Complainant service.

It was the Store Manager’s evidence that her colleague would not have the authority to override her decision as she was a Store Assistant.

During cross examination the Store Manager stated there was no sign the Complainant was distressed. She explained, if she did produce a medical exemption it would not have been a problem. The Store Manager denied making reference to medical evidence in her phone call with the Complainant after she attended the store.

Upon inquiry the Store Manager stated the CCTV automatically deleted after 30 days and when there was no request for it , they did not save it.

The Store Assistant gave evidence when the Complainant presented for her appointment the Store Assistant she asked her to wear a mask and offered her a one to which she replied she was exempt. The Store Assistant sought guidance from her Manager. It was her evidence that the Complainant refused to wear a mask and when asked for a letter from her doctor she did not have one. The Assistant stating, she did not refuse to serve the Complainant, but it was the Complainant who refused to wear a mask or produce an exemption letter. The Store Assistant agreed that she was asked  by the Complainant to write a note and signed her name.

The Store Assistant was disagreed with the Complainant’s representative that the Complainant was distressed. She described the interaction as being very limited. It was the Store Assistants evidence that she did not intervene and prevent the Store Manager from selling the phone to the Complainant.

Section 3 of the Equal Status Act 2000 defines discrimination as:

3.— (1) For the purposes of this Act 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) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Or                                                

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds

“(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”)”

Special Treatment is defined in Section 4: -

“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.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”

Burden of Proof

The burden of proof is set out in Section 38A of the Acts which provides:

“(1) Where in any proceeding facts are established by or on behalf of a person from which it may be resumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.”

It is necessary to consider SI 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 was introduced to assist in the prevention of the spread of Covid-19 in the interest of public health.

Regulation 4 of S.I. 296/2020 which requires a “responsible person” that being the person in charge to:-

“(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.

Under Regulation 5 (a) of S.I. 296/2020 provides for specific exclusions: -

“5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if -

(a) the person cannot put on, wear or remove a face covering -

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress”.

There were conflicts of evidence between the parties in this case but there a few matters which are not in dispute; there was government restrictions in the place at the time requiring customers to wear a mask, the Complainant was not wearing a mask, the Store Manager and the Store Assistant fell under the definition of a “reasonable person” and there were mandatory obligations on them under Section 4 of the Regulation to take reasonable steps to engage with customers on the legislative requirements. It was also undisputed that the Complainant on the day did not have a medical certificate from a medical practitioner stating she was exempt from wearing a mask.

In this case, I do not believe it is necessary to go beyond these facts. The witnesses from both sides were clear in their evidence but the conflicts that arise around the detail of the exchange between the parties , does not require a decision as to who was right and wrong.

The reason for this is the law was clear and in particular Regulation 5 where there is an onus on the Complainant to establish that she has a reasonable excuse not to wear a face covering. It is accepted Regulation does not require a medical certificate to be produced. However, in these circumstances where the Respondent’s witnesses were in the business of phone sales and not in medically trained, I find it to be entirely reasonable and proportionate for the Respondent to request  to see a medical certificate from the Complainant’s Doctor. This would be a proportionate response to avoid any unnecessary disclosure, questioning, discussion or judgment around the Complainant’s medical condition or health and thereby allowing all parties to go about their business without further issue.

Therefore, on the balance of probabilities I find the Respondent did not engage in prohibited conduct. Consequently, the Complainant has not discharged the burden of proof required by Section 38A.

ANONYMISE DECISION

Having heard both parties and in particular the Complainant’s request, I have decided to anonymise this decision due the potential for further upset caused to all parties.

I find that the Complainant was not discriminated against on the grounds of her disability

Equal Status- discrimination – Mask