Complainant

Respondent

Parties

Maria  Nordwind

Coach Stores Ireland Limited

Representatives

Self-Represented

Ms Geraldine Carr Matheson Solicitors, Mr Kevin Bell BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049551-001

06/04/2022

In summary, this complaint concerns a complaint by the Complainant in which she alleges that on the 06 January 2022 she was discriminated against, contrary to the Equal Status Act 2000, by the Respondent in the provision of goods and services in that she was discriminated against on grounds of disability when her claim of an exemption from the Covid Regulations regarding the wearing of a face covering was rejected by members of staff in the Respondents store.

The Complainant further claims that she was discriminated against by the failure of the Respondent to provide reasonable accommodation for her disability on the date of the incident.

The Respondent contends the Complainant claim that she has been discriminated against by the

on the basis of disability in asking her to leave its store on 6 January 2022 for refusing to wear a face-covering.

The Respondent submits that the Complainant has failed to establish that she falls within the protected ground of disability and as a result has not established any standing to maintain the within action.

The Respondent further submits that no disability was identified either at the time of the incident or in the Complaint Form and that its actions in respect of the Complainant were justified by reference to the provisions of s.14(1) of the Equal Status Act 2000 in circumstances where the Respondent was obliged, at the time of the incident, by the provisions of the Health Act, 1947, and S.I. No. 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020, to ensure that all customers of at its store were wearing face coverings.

In summary, the Complainant alleges that she has been discriminated against by the Respondent on the basis of disability in asking her to leave its store on 6 January 2022 for being unable to wear a face covering. 

The Complainant further alleges that she was discriminated against, contrary to the Equal Status Act 2000, by the Respondent in the provision of goods and services in that she was discriminated against on grounds of disability when her claim of an exemption from the Covid Regulations regarding the wearing of a face covering was rejected by members of staff in the Respondents store.

The Complainant also claims that she was discriminated against by the failure of the Respondent to provide reasonable accommodation for her disability on the date of the incident.

The Complainant submits that on entering the store of the Respondent on the 06 January 2022 she was approached by one of the sales assistants asking about a face covering.

The Complainant further submits that on informing the staff assistant that she is medically exempt, the staff attendant proceeded to inform her politely that it is mandatory under store policy.

The Complainant stated that she responded once again informing the staff member that she is medically exempt and cannot wear a face covering due to her illness.

The Complainant informed the hearing that the staff member informed her then that she cannot shop in the store without the use of a face covering.

The Complainant noted from her submission that she again informed the staff member that she has a medical condition which prohibits her from wearing face covering and that it is not legally allowed to not allow her to shop in this store due to her disability.

The Complainant further noted and acknowledged that the staff member appeared at this point to not know what to do or how to respond so the Complainant requested if she could speak to the store manager.

The Complainant submitted at the hearing that the staff member she was dealing with up until this point was polite and the matter only escalated after she made the request to speak to the store manager.

Shortly after making this request, the Complainant submitted that the store manager for the Respondent approached her and requested she use a face covering.

The Complainant said that she explained to the store manager that she is medically exempt from wearing a face covering after which the store manager asked her to leave the store.

The Complainant further explained that she then proceeded to inform the store manager that this is discrimination based on her medical condition and that she has a doctor’s note.

The Complainant stated at this point the store manager repeatedly informed her that non masked people can’t be in the store and proceeded to show her the door with her hand and asked her again to leave.

The Complainant told the hearing that at this point the conversation started to become quite heated, and the store manager again asked her asked her to leave the store.

The Complainant submitted that she again asked the store manager if she knew what she was doing was illegal in which the store manager replied yes and again proceeded to wave her hand in the direction towards the door while asking her to leave her store.

The Complainant further told the hearing that she asked a number of times if the store manager would like to see the relevant documentation in which the store manager continued to wave her hands multiple times saying ‘’ non masked people can’t be in my store’’ and asked her to leave.

Prior to leaving the store she asked the store managers for her name and informed her that she would be making a formal complaint under the Equal Status Act.

At the hearing, the Complainant noted that the reason she did not at any time produce the medical exemption and show it to the staff member was due to the tone of the conversation escalating with the store manager.

On a further note, the Complaint explained that in the days following the incident the reason she did not send in her medical exemption with a request to resolve the matter and furthermore to be reasonably accommodated should she attempt to use the store again, was due to how she felt she was treated by the staff member and the staff manager in particular on the date of the incident, and how this made her feel after the incident that took place.

It is in this context the Complainant submitted that she did not want to visit or purchase anything in the store again.

While the Respondent did not dispute the recollection of events on the date of the incident, the Complainant also noted that she asked to secure camera recording from the store for the records of the actions of the manager and the embarrassment she caused to her on the day but did not receive it.

In support of her complaint, the Complainant referred to Statutory Instrument number 296 of 2020

which makes it a criminal offence to enter or remain in a Relevant Premises without wearing

a Face Covering unless the person concerned has a "Reasonable Excuse" as defined in the

Statutory Instrument at paragraph 5.

It is in this context that the Complainant submits that they have Reasonable Excuse within the meaning of the Statutory Instrument, and they further submit say that she made the Respondent aware of the existence of her Reasonable Excuse (and Disability) but was still refused access to

goods/services and use of the store of the Respondent on the date of the incident.

The Complainant submits that her Reasonable Excuse amounts to a “Disability” within the meaning of section 2 (Interpretation) of subsection e of the Equal Status Acts 2000 in that she was treated less favourable than another person has and would be treated in a comparable situation on the “disability ground” given that she was subjected to discrimination) by the Respondent arising from her Disability and Reasonable Excuse which resulted in the Respondent refusing her service on the date of the incident as a direct result of her inability to wear a Face Covering.

The Complainant further submits as referenced in her submission that the Respondent did not offer, as is required under section 4 (Discrimination on the grounds of disability) of the Equal Status Acts, to “do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”.

In relation to the Complainant at no point producing her medical exemption on the date of the incident, the Complainant submitted that there is no requirement under the Statutory Instrument to provide evidence of a reasonable excuse to a responsible person” (as defined in the Statutory Instrument), and the only obligation upon the occupier, manager or person in charge of the relevant premises is to engage with persons entering or in the relevant premises to inform them of the requirements under the Statutory Instrument and to promote their compliance with those requirements.

In this regard, the Complainant submits that she did advise the Respondent both of her reasonable excuse under the Statutory Instrument and of the fact that her reasonable excuse amounts to a Disability under the Equal Status Acts.

The Complainant also stated that this information was disregarded by the Respondent, and she was refused service without any attempt to make any accommodation for her Disability.

In closing, the Compliant concluded that as a result of the incident in the store of the Respondent, she believes she suffered discrimination and discrimination arising from a failure to provide a “reasonable accommodation” for a person with a disability.

The Respondent contends the Complainants claim that she has been discriminated against on the basis of disability in asking her to leave its store on 6 January 2022 for refusing to wear a face-covering.

The Respondent further contends that the Complainant has failed to establish that she falls within the protected ground of disability and as a result has not established any standing to maintain the within action.

The Respondent submits that no disability was identified either at the time of the incident or in the Complaint Form.

The Respondent further submitted that its actions in respect of the Complainant were justified by reference to the provisions of s.14(1) of the Equal Status Act 2000 in circumstances where the Respondent was obliged, at the time of the incident, by the provisions of the Health Act, 1947, and S.I. No. 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020, to ensure that all customers of at its store were wearing face coverings.

By way of background information, the Respondent outlined that the Complainant entered the Respondent’s Kildare Village store (“the store”) on 6 January 2022 and was not wearing a face-covering.

The Respondent submitted that a staff member noticed the Complainant entering the store without a face covering, and approached the Complainant and advised her of the legislative requirement to wear a face covering inside the store.

The Respondent alleges that Complainant in this moment stated that she was exempt on medical grounds but did not adduce any documentation of this.

The Respondent’s store manager then approached the Complainant and informed her that the Respondent was legally obliged to require all shoppers to wear a face-covering.

The Respondent added that when the Complainant continued to refuse to use a face covering the store manager then requested that the Complainant leave the store.

The Respondent also referenced by way of its submission that on the 14 July 2021 the Complainant made a comment on a social media post by the Irish Independent regarding an article detailing the spread of the Omicron variant of Covid-19 at that time.

The Respondent submitted that the Complainant said, “The delta variant sound awfully like common head cold. I think I might have gotten it twice now during the past 3 months!”

In this regard, the Respondent further referenced to its submission on this point noting that between 14 July 2021 and today the “common head cold” referred to by the Complainant in her social media comment has killed 3,718 people.

Legal Submissions

The Respondent submits that Section 14(1) of the Equal Status Act 2001 states:

“14.—(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment…”

In addition, Sections 5 and 31A of the Health Act, 1947, empower the Minister for Health to

make certain regulations where there is “immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19.”

In exercise of the powers under the aforementioned enactment, the Minister for Health made issued S.I. 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 (“the Regulations”).

Regulation 4(1) of the Regulations stipulates that “A person shall not, without reasonable excuse, enter or remain in a relevant geographical location without wearing a face covering.” Failure to comply with this regulation is a criminal offence, pursuant to section 31A of the Health Act, 1947, as per regulation 4(3).

Regulation 4(4) of the Regulations provides that “a responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirement of paragraph (1) and to promote compliance with those requirements.” Regulation 3 defines “responsible person” as the manager, occupier or person in charge of the premises. In the within case, the responsible person was Jo-Ann O'Neill.

 “Reasonable excuse” for the purposes of regulation 4(1) is defined by regulation 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, (b) the person needs to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise),

(c) the person removes the face covering to provide emergency assistance or to provide care or assistance to a vulnerable person,

(d) the person removes the face covering to avoid harm or injury, or the risk of harm or injury,

(e) the person removes the face covering in order to, and only for the time required to, take medication,

(f) the person removes the face covering at the request of a responsible person, or of a worker, in order to enable him or her to ascertain the person’s age by reference to photographic identification for the purposes of the sale of goods or services in respect of which there is a minimum age requirement or where the responsible person, or worker, has lawful authority to verify the person’s identity, or (g) the person removes the face covering at the request of a responsible person, or of a worker, in order to assist the responsible person or worker to provide him or her with healthcare or healthcare advice.”

The Respondent also refers to its submission, that the Complainant did not establish on 06 January 2022, that she had any reasonable excuse not to wear a face covering (either mask or visor) in the store.

The Respondent also puts forward that neither has she established, even to a prima facie degree, that she has a disability as defined by law, and therefore that she even has standing to maintain the within action.

By way of reference to its submission, the Respondent submits in support of its position that the Labour Court established the evidentiary threshold for proving the existence of a disability in A Retail Company v. A Worker EDA2012 in the following terms:

“It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court.

The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value.”

“The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question. As the Complainant has not met the burden of proof, it follows that the claim must fail.”

In this regard the Respondent also submitted that the failure of a Complainant to present any evidence of disability at the time the individual was requested to wear a face mask in commercial premises was a deciding factor in the decision of the Workplace Relations Commission in Vaughan v. BSC Management ADJ-00032957 in extremely similar circumstances to this case:

“The Complainant asserts that she was treated less favourably on the grounds of her disability. The Complainant is thus required to demonstrate that a prima facie case of discrimination exists.

Having carefully examined all of the evidence heard, I am satisfied that no medical evidence of any disability, was provided either at the hearing, or to the Respondent at the material time; that the conditions the Complainant described do not constitute a disability within the meaning of the Act; and, furthermore, it therefore follows, that the Respondent was not on notice of any disability.

Rather, the Complainant made an unsubstantiated assertion that she was exempt from wearing a mask. In such circumstances I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability.” Similarly, the Respondent also puts forward that the failure of a complainant to inform a commercial premises of the particulars of an alleged disability when claiming an exemption to wearing a face covering was a determining factor in Nakaluznijs v. Dooley’s Pharmacy ADJ-00032144:

“In addition to being satisfied that the Complainant suffers from a disability, I must also be satisfied that the Respondent was aware of such disability and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability.

The Complainant when questioned at the hearing stated that he did not advise the respondent of his disability as he felt he had the right to keep it to himself.

I note that the Complainant in this case has provided no evidence/documentation in relation to his disability or in relation to any medical exemption from the requirement to wear a mask. The Complainant by his own admission stated that he had not disclosed details of his disability to the respondent, nor did he offer any evidence of any medical exemption from the requirement to wear a mask…

By way of reference to the cases above in support of the Respondents position, the Respondent submits that the true reason for the Complainant’s refusal to wear a face covering in the store on 6 January 2022 is that the Complainant did not regard Coronavirus/Covid-19 as a serious risk to health, as evidenced by her social media activity.

The Respondent points out that the belief that Coronavirus/Covid-19 does not present a serious risk to health did not constitute a reasonable excuse not to wear a face covering for the purposes of regulation 5 of the Regulations.

Furthermore, the Respondent submits that it has a statutory obligation under the Safety, Health & Welfare at Work Act, 2005, and a common law duty of care to its customers and staff to take reasonable precautions to protect them from the risk of illness or injury at work.

In requesting customers of the store to wear a face covering, the Respondent it was therefore not only fulfilling a legal obligation under the Regulations but was fulfilling its statutory obligations under the 2005 Act and its common law duty of care toward its customers and staff.

In the Respondents follow up submission in response to the medical documentation the Complainant submitted, the Respondent submits that one of doctor’s notes referenced by the Complainant was issued on 08 May 2023 and has no probative value to establishing that the Complainant had a disability 15 months previously in January 2022.

The Respondent also submits that both doctor’s notes are extremely scant on detail and simply establish that the Complainant has a fear of suffocation when wearing a mask, and that accordingly it is recommended that she not do so.

The Respondents further submits that this does not constitute a disability as defined by statute, European Law, and the UN Convention. When not wearing a mask there is no evidence that the Complainant suffers from any impediment whatsoever.

The Respondent in further support of its position also refers to decision HK Danmark C-335/11 the Court of Justice of the European Union expressly adopted the definition of disability set out in the UN Convention, which defines a disability as:

“a long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The Respondent concluded on this point by stating that the Complainant is not hindered or prevented from participating in society on an equal basis with others in the least. She is, apparently, in perfect health when not wearing a mask and she is not in possession of the protected ground.

In its further closing remarks, the Respondent submits that the Complainant has not established that she is in possession of the protected ground she claims and thus has not established that she has standing to bring the within claim.

In addition, the Respondent states that, even if the Complainant were to establish that she is in possession of the protected ground, their actions on 6 January 2022 were taken on foot of legal obligations under the Health Act 1947, S.I. 296/2020 – Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020, the Safety Health & Welfare at Work Act, 2005, and common law.

In summary, this complaint concerns a complaint by the Complainant in which she alleges that she was discriminated against, contrary to the Equal Status Act 2000, by the Respondent in the provision of goods and services in that she was discriminated against on grounds of disability when her claim of an exemption from the Covid Regulations regarding the wearing of a face covering was rejected by members of staff in the Respondent store.

The Complainant further claims that she was discriminated against by the failure of the Respondent to provide reasonable accommodation for her disability on the date of the incident.

The issue for decision by me is, whether the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the Respondent failed to provide the Complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts.

In reaching my decision I have taken into account all of the submissions made to me in the course of my investigation.

The parties referred to SI 296/2020, which came into force on the 10 August 2020. This required the wearing of face coverings in designated locations. SI 296/2020 also made provision for ‘reasonable excuse’ for a person attending a designated premises, such as a store, without having to wear a mask. This included a person who could not wear a mask due to a disability. It did not apply to those aged under 13.

It is worth bearing in mind that SI 296/2020 and the other Regulations were promulgated to address the ‘immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19’, as set out in section 31A of the Health Act 1947 (as inserted at the start of the pandemic).

At the hearing, it was not disputed in this case that Covid-19 is an infectious disease which is transmitted through the air. In this regard, the Complainant also rejected the allegation that she was anti-mask and acknowledged that face coverings provide protection against the transmission of the disease.

On that note and by way of context, I am mindful to note that during this time the threat to public health was real and immediate and it is in this setting the incident at the store between the Complainant and the staff members of the Respondent on the 06 January 2022 took place.

In O ‘Doherty and Waters v Minister for Health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms: ‘The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated.’

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.

In order for a case to succeed under the Act, there is a clear onus on the Complainant to first establish that there was “prohibited conduct” in this case alleged discrimination by the Respondent. It is necessary for the Complainant to establish by way of comparator, named or hypothetically, that the Respondent treated him “less favourably than another person is, has been or would be treated”.

Section 38A (1) provides that the burden of proof is: " 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.

Therefore, the Complainant in the first instances 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 the presumption of discrimination.

In this regard, I am satisfied that the Respondent is providing a service within the meaning of the Equal Status Acts.

The Complainant submitted that she is medically exempt owing to her medical condition and that she has a medical documentation that confirms her exemption. 

The Respondent on the other hand submits that the Complainant did not at any time show her exemption and were not aware on the date of the incident that the Complainant has a disability.

The Respondent further submits that they did not discriminate and that their policy met the requirements in place at the time, during Covid-19.

The Complainant submitted that she suffered from anxiety and panic attacks and provided details on the date of the hearing by way of medical documentation, and I am satisfied that the Complainant has a disability as defined under the Act.

The Complainant however confirmed at the hearing that she did not produce any documentary evidence on the date of the incident when challenged upon her statement of being exempt under the regulations.

The Complainant submits that while she had the exemption in her possession on the day of the incident, the reason she did not produce the documentation to a staff member on the day was due to the conversation she had with the members of staff becoming quite confrontational.

In this regard, it is worth noting again that it was not disputed in this case at the hearing that Covid-19 is an infectious disease which is transmitted through the air.

It was also not disputed that face coverings provide protection against the transmission of the disease.

Furthermore, the Complainant rejected the allegation that she was anti-mask.

It is in this context the Complainant accepted at the hearing that Covid was an infectious disease which is transmitted through the air, and she submitted that she made sure each time she left her home to take every precaution possible to ensure she reduced her chances of contracting covid.

The Complainant also noted at the hearing that in regard to the concerns she had of contracting covid, she also could understand reservations, fears or concerns the staff members in the store may have had in relation to contracting covid and also the requirement of customers to wear a face covering.

It is in this context also that both parties accepted that tensions were high, and a disagreement arose between the Complainant and the staff members of the Respondent in regard to the interpretation and application of the rules and guidelines during the Covid-19 pandemic in relation to the wearing of a face covering.

Having carefully examined the matter, I am satisfied that while the Complainant stated that she had an exemption, she did not provide medical evidence of an exemption to the Respondent on the date of the incident.

While I note that the Complainant submitted that as the conversation, she had with the staff member and the manager had escalated to the point that it had become quite confrontational, she did not have as a result an opportunity to produce her exemption.

Notwithstanding this, the Complainant also submitted that the reason she did not submit the medical exemption in the days following the incident at the store was that she felt insulted and humiliated by the incident and it is in this context she did not seek to resolve the issue of the medical reasons why she could not wear facemask should she wish to attend at a future date in the store.

In this regard, while I do not doubt the Complainant has a disability based on the documentation she submitted and produced also on the date of the hearing, a mere proclamation of exemption by the Complainant, without any further verifiable support on the date of the incident or follow up with the Respondent in the days following on from the incident was not in the circumstances sufficient.

Furthermore, section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonableness in this case must take account of the pandemic, as reflected in the language of section 31A.

This must take account of the fact that retail premises were open for members of the public to attend, including vulnerable groups.

It must also take account of the fact that premises were only able to open because employees attended work, irrespective of the risk to them and their households.

Section 4(4) refers to ‘harm’ and it was not disputed in this case that Covid-19 could be a fatal disease that also caused long-term debilitating consequences, at least for some.

In this context, I am of the view that it was reasonable for the Respondent to ask and even insist that customers wear face coverings, and this mitigated harm.

There was, therefore, no discrimination.

In all the circumstances I find that the Complainant has not adduced facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. 

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.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

In all the circumstances I find that the Complainant has not adduced facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. 

The Complainant has also 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.

Covid-19, mask, equal status, disability, reasonable accommodation