Complainant

Respondent

Anonymised Parties

A Father

A Civil Registration Office

Representatives

Siobhan Maguire BL instructed by Meghan McSweeney of Mason Hayes and Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048630-001

14/02/2022

This complaint concerns one of three related complaints and three related complainants.

The alleged incident of discrimination occurred on the 6th of October 2021 when the Complainant, his wife (who brought complaint ADJ-00037294) and their daughter (on whose behalf complaint ADJ-00037293 relates) attended the Respondent civil registration office to register the recent birth of their daughter.

A requirement to wear masks indoors was still in effect due to the covid-19 pandemic and the Complainant did not wear a mask.

As the case concerned the identity of a minor I have determined that the appropriate course of action is to anonymise the Complainant’s family.

The Complainant and his wife attended the hearing and both gave evidence under affirmation. They submitted a written statement beforehand.

They alleged they were discriminated against on the basis of disability. The Complainant has outlined an interpretation of the Equal Status Acts which argues that disability arose at the moment in which he was asked to put on a mask. They further argue that the Respondent was entirely wrong to request that they provide details of a disability which would not allow them to wear a mask as this related to private medical data.

The Respondent submitted detailed written submissions and a number of witnesses gave evidence under affirmation.

They point out that the Complainant still received the services he sought to obtain on the day in question. He was simply served in his car rather than in the building to facilitate his refusal to wear a mask. Ultimately the Respondent met any obligation to provide the Complainant with reasonable accommodation even though no such obligation existed.

Mr Thomas Gannon gave evidence of first meeting the Complainant in the lobby of the building and telling him that he needed to put on a mask. Ms Orla Conlon gave evidence of her being called down to assist with the situation and then assisting the Complainant with later queries by email.  Mr Charlie McGuinness gave evidence of the Respondent’s policy and his interaction with the Complainant on the 6th of October.

Nearly all of the facts in this case are agreed.

The Complainant, his wife and daughter attended the Respondent offices to register for an official document on the 6th of October 2021.

Neither the Complainant nor his wife were wearing a face mask. When they arrived into the Respondent’s office, contained within a larger public service complex, they were stopped and asked to put on a mask. Three separate officials of the Respondent asked the Complainant and his wife to either put on a mask or leave.

The Complainant did not draw the attention of the Respondent to any disability which would prevent him from wearing a face mask.

The Complainant then suggested that he be served from outside in his car. The Respondent’s employees facilitated this. The Complainant waited in his car and staff went outside to him and provided him with forms. There was some follow up emails and the relevant documentation was issued to the Complainant.

There was some dispute as to whether the Complainant was offered to be served in the lobby of the complex but ultimately this is not at issue.

The burden rests with the Complainant to establish that he comes under the protections of the Equal Status Acts. This obligation is laid out in detail in the Respondent submissions, referring specifically to Labour Court decision Waterford Senior Care Limited v Liam Tabb EDA 1926 WRC decision James Jackson v An Post ADJ-00033366.

In this case the Complainant argues he and his wife are covered by the disability ground. 

The Complainant seeks to rely on an interpretation of the definition of disability as outlined in Section 2 of the Act.  Specifically subsection (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;.

Relying on how the clause is set out the Complainant argues that a disability can be taken to mean a condition which affects a person’s emotions.

The Complainant refers to the definition of condition set out at www.dictionary.com. This is a particular mode of being of a person or thing; existing state; situation with respect to circumstances.

He argues that he and his wife experienced significant emotional distress and stress on the day and at the moment they were challenged to wear a mask that their disability in this matter was realised, that is the condition formed. The request to wear a mask both resulted in his disability and his discrimination arising from that disability. He does not believe the word condition above refers to a medical condition or state of health.

This is plainly incorrect. The use of the word affects above makes it clear that there must be some condition which affects the relevant person’s emotions.  To follow the Complainant’s interpretation of the act, i.e. that the condition which he was affected by was simply the situation of being asked to put on a mask and that then caused emotional distress rendering him disabled for the purposes of the act, would the same as accepting that the Equal Status Acts definition of disability covers any person feeling emotional distress at any given moment.

The Complainant even accepted in his arguments that such a thing cannot be independently verified. Considering the burden is on the Complainant to show that the definition of disability applies to him then I would think his own argument would defeat itself.

On any plain reading of the definition of disability contained in the act subsection e refers to a medical condition or state of health which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;.

Separately I would also note the following.

The Complainant gave evidence which suggested that the restrictions around mask wearing fell out of the sky, not that they were as a result of a pandemic which had caused a public health emergency and claimed many lives. This appears disingenuous and does affect his credibility as a witness.

I am of the view that he overstated the emotional distress of the encounter. It is simply not credible that an adult, who is not affected by a medical condition, would be so affected by a somewhat terse interaction with a number of public servants who appeared to have gone above and beyond to facilitate him.

During the pandemic the Respondent was required to take measures that satisfied their obligation to provide a safe place of work and provide a safe place for the public to do business. One of these was requiring members of the public to wear a mask.

The Complainant has demonstrated no reason why he could not wear a mask. It appears to have been a choice. The Respondent did the best it could to accommodate his choice while respecting their obligations to their staff and the public using their offices.

I find that the above complaint is not well founded.