Complainant

Respondent

Parties

James  Jackson

Tesco Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

M Kingsley BL instructed by Aideen Smyth Tesco Ireland Legal Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051756-001

15/07/2022

The complaint is that the Complainant was discriminated against when the Respondent failed to provide reasonable accommodation when the Complainant informed members of staff that he had an exemption and later a medical exemption from wearing a mask due to a disability.

The events which gave rise to the complaint occurred in the Respondents store in Paul Street Cork on 15 January 2022.

The Complainant recorded the events on his phone. The video consisted of three segments.

Video 1 shows the encounter between the Complainant and a security person near the entry to the shop. The Complainant told the employee that he had an exemption.  It also shows the security person telling the Complainant that he needed proof (of an exemption) to come into the shop, that this is the policy. The Complainant challenged the security person saying that he did not need to show proof, that this was up to the courts to decide. The Complainant referred to the security person preventing him shopping and that person saying that he had to wear a mask. The Complainant mentioned the Equal Status Act and said that the ‘Guards’ should be called. The Complainant then continued with his shopping. From the Complainant’s perspective the main point was that Tesco were saying that they had a policy to ask for proof of exemption and this was illegal.

Video 2 is the longest of the three videos and shows the Complainant continuing with his shopping. At the point where he is checking out, he was approached by what he described as security, but transpires was the Duty Manager, about not wearing a mask. The Complainant spoke about waiting on the ‘Guards’ and being medically exempt. There was an exchange between the two where the Complainant is referring to it not being the law that he must provide medical evidence; that he would take Tesco to court for refusing him a service; that the Duty Manager was not a doctor and had no right to ask him for medical evidence or history. The Duty Manager was asking for a copy of a letter for the medical exemption. He was told he was required by law to wear a mask. The Duty Manager referred to looking at the issue from their perspective; that they could refuse entry for not wearing a mask; that a person could be carrying a virus and endanger everyone else; and their responsibility to ensure that people are safe.

 There followed some engagement with a member of An Garda Síochána and a discussion about providing the exemption to that person. When the Complainant asked was he required to provide a security person or shop assistant with medical evidence, the Guard said he did not know. The Complainant said that he did have a letter at home and there was some exchange about going to get the letter and bringing it back. The Complainant said he would provide the letter to the Gardaí not to the Tesco staff and that he did not have it on him at the time. Again, there was reference by the Complainant to taking Tesco to court and the Equal Status Act. The video shows the Garda escorting the Complainant from the building and taking his details. There is a reference by an garda to the law is the law.

Video 3 shows the Complainant going to the Garda station and handing in his exemption letter in order that they might take a photocopy and the Complainant referring to this being fairly distressing.

Note - the letter referred to is that provided by a doctor on the 30th of February 2021 which refers to his condition and states, “and is finding it difficult to wear a mask whilst in shops and buildings etc. This has caused severe distress and has interrupted his social welfare payments as he has not been able to physically collect them in person.” The letter asks for an accommodation of making payments directly to his bank account and assisting him in applying for a disability payment. Colleagues were advised to be understanding and the letter went on to apologise that the complainant felt unsupported on the day in question. A voucher for €200 was offered in the interests of reaching an amicable solution. The Complainant did not accept the offer of the resolution.

The Complainant served a form ES1 on the Tesco Head Office on 10.02.22.  On 9 March 2022 the Respondent wrote to the Complainant in what is taken to be  their response to the ES1 as the letter replied to the complaint as set out in the ES1. The gist of the response was to the effect that it was not the role of colleagues to enforce the mandatory requirement to wear face coverings; that it was their role to inform and remind customers of the requirement referring to the requirement to so unless the customer had a reasonable excuse for not doing so.

In advance of the hearing, the Complainant provided a photograph of a sign at the Tesco premises. This was a photo of a lanyard with the words: ‘not all disabilities are visible ’and ‘colleagues will know that you’d like a little extra help-all you have to do is ask’ ‘Examples of hidden disabilities are given as autism; hearing loss, multiple sclerosis.

Following the hearing, the TESCO policy as circulated to staff was submitted, copied to the Complainant, who provided his observations on November 22nd, 2022. The content of the policy and the comments of the Complainant related to that policy were considered in arriving at a decision in this matter.

One matter of legal interpretation was raised by the Respondent vis a vis time limits Section 26(6)(a) of the Workplace Relations Act 2015 : the complaint was recorded as received by the WRC on the 15th of July 2022-one day outside of the six-month time period provided for under the relevant subsection. The Respondent sought that the complaint be dismissed as being out of time.

A second matter of the application of Section 14 of the Act to the facts of the case was also raised by the Respondent who argued that S.1. 296/2020 provided an enactment for the purposes of this section of the Equal Status Act.

Preliminary Issue – Time Limits

The position of the Complainant is that he did wait until the end of the six-month time period to submit a complaint. He described various technical difficulties which he experienced and provided emails showing his efforts to log the complaint with the WRC on the 14th of July 2022, the last day of the six-month time limit specified under S.21 of the Equal Status Act 2000.

Discrimination on Grounds of Disability – Failure to Provide Reasonable Accommodation

The Complainant described entering the Tesco store in Paul Street in Cork on the 15th of January 2022. He was not wearing a mask and was met by a security person who insisted that if he was not wearing a mask he would have to leave. The Complainant said he explained that he had an exemption, but the security person did not seem to understand the law. The Complainant said to call the Guards and went on with his shopping. Later, having completed his shopping he was at the checkout and another member of staff came and spoke to him. He said that the Guards had been called. The Guards had been called and they came. He did do his shopping but unless he had really pushed it, he would have been denied service which is against the law. From reading previous WRC decisions, the Complainant referred to the (WRC) process as one where he would be required to have produced documents and that unless he broadcast his condition in front of everyone his case would not succeed. This involved the disclosure of private information to members of staff in Tesco. The videos confirmed what had happened on the day.

In cross-examination Mr Kinsley explored the disposition of the Complainant at the time of these events in terms of his attitude towards mask wearing in general. The Complainant replied that he had seen studies that indicated that wearing masks was not helping but acknowledged that this was a government decision. There were some exchanges around this issue and Mr Kinsley suggested that the Complainant’s view had nothing to do with his health, that his frame of mind was opposed to those regulations. He put it to him that he was quite aggressive in his approach on the day which was not accepted by the Complainant. It was put to the Complainant that there were obligations on Tesco at the time to ensure the enforcement of regulations S.I. 296 and the Complainant accepted that yes, there was an expectation that Tesco would do so. In respect of the term “exemption” the Complainant was asked where ii is said within the statutory instrument that there is an exemption or there is an exemption on medical grounds. The Complainant’s response was to the effect that the Respondent could not ask for medical evidence which he did ask for, but he did he accept that the Respondent could take reasonable steps to establish whether a person could be released of the obligation to wear a mask. The Complainant was asked, given there was no visible sign of a disability, how could a security guard have known that his refusal was anything to do with having a disability to which the Complainant replied that it was up to him to ask and that he, the Complainant, could say that he was exempt. The Complainant conceded that he did not have a disability which was self-evident to the security guard on the day. The Complainant suggested that he was being asked to provide the burden of proof that he had a disability and the Respondent Counsel advised that that was indeed his responsibility (under the Equal Status Act). The Complainant was asked if he accepted that the picture of the daffodils/lanyard indicated that there was a Tesco policy in place which provided discrete help and assistance to a person who did not have a visible disability. The Complainant’s response was to the effect that he did not attempt to avail of the policy as he simply saw the slogan.

The Complainant was asked did he agree that he had attended the same store in the past without wearing a mask and had become abusive, calling a security person a “dickhead”. The Complainant declared this was a lie, that he had been asked about masks before but never anything about a medical disorder previously.

Referring to the doctor’s letter of the 10th of February 2021, the Complainant was asked why when he had this document prepared 12 months previously, he had no difficulty disclosing his medical condition to a different third party, i.e., either the post office or the Department of Social Protection. The Complainant effectively replied that he required welfare, and he needed the money, he was under pressure at the time.

In relation to the second video there were some similar questions in relation to the medical exemptions and the position of the Complainant remained that he cannot be asked for a doctor’s note, cannot be asked for medical proof, that it is not in the regulations. Asked why he was prepared to provide medical information to An Garda Síochána and not to Tesco, the Complainant stated that they are the law. The employees are workers in a shop. Asked by the Chair to clarify the discussion with the Garda, the Complainant stated that the Garda referred to taking him to the Bridewell and he said he had a medical exemption to which the Guard said okay, and he asked for a letter. He stated he had one. The Complainant asked the Guard had he read the statutory instrument to which he replied, no. The Complainant said he would provide the letter which he did bring to the Garda Station. In response to the Chair the Complainant stated that prior to this incident he had attended at Paul Street quite often, but after that incident he believed he had used online shopping. In response to the Chair the Complainant confirmed that the reasonable accommodation which he felt should have been provided was that he should be allowed to shop without wearing a mask. That when he stated he had an exemption he should have been provided with a reasonable accommodation and that he was not obliged to provide medical evidence in support of that request. Asked in terms of how the Respondent was to know that he was entitled to an exemption, he stated that it was not their duty to find out, it was up to the Gardaí to decide and not the Respondent.

Noting that in response to the ES1,TESCO had apologised and offered a voucher for €200, the Chair asked why he did not accept that offer. The Complainant replied that he was unhappy with the wording as it did not acknowledge a wrong, referring only to a poor shopping experience.

In his summary the Complainant stated that a lot of what was said hinges on the position that it was okay to ask for letters whereas if it was that these would have to be provided in order to obtain an exemption to wearing a mask. He submitted that this was completely illegal. Referring to his request for a reasonable accommodation, he didn’t want to go there and give information and have a discussion in a big crowd giving details of his disorder; that he did say he was medically exempt, and he did all that he could. The insistence on letters was all wrong.

In his written comments on the TESCO policy submitted post hearing, the Complainant cited the policy as supporting what he said at the hearing : ‘ if a customer has no face covering aduty manager may approach the Customer and ask if they have forgot their face covering and offer a free one at the CSD-it is not permitted to ask the customer the reasons they are exempt.’

And

‘it is a requirement to wear a mask in retail settings unless you are exempt’

And

‘if they explain they are exempt; Thank you, please let me know if I can help you at all during your shopping trip today.’

The Complainant referred to the evidence of the duty manager that he was  to ask for medical evidence for an exemption-that there was nothing like this in the document.

Respondent witness – Mr Svetozar Gligorouicz, Duty Manager, Tesco Paul Street

The witness explained that his role was to deal with matters on the floor and at the checkouts and he had responsibility for customer safety. He recalled the incident on the 15th of January 2022. Asked if he recognised the Complainant he said yes because he was not wearing a mask on that day and he recalled a situation about two weeks before that where the Complainant was arguing with a colleague and called him a name – dickhead. On the 15th of January the Complainant was at the self-service checkout in the store. The witness was aware that there had been an issue, he saw him come in and the security person had approached him, told him to wear a mask but he would not do so. Asked what his understanding was of his obligations under the relevant legislation the witness said that it was to make sure that everyone is safe, particularly staff and others. He approached the Complainant at the self-service checkout and confirmed that there was no appearance to him of any disability. The Complainant said he had an exemption on grounds of a disability. The witness said there was a disagreement and he told him that he was required to wear a mask or provide a medical letter to which the Complainant said that the Guards had been called and he was waiting for them to arrive. Asked if he had any discussion with the Guard, he replied, no, when the Guards arrived, he left the area, that he had other duties to take care of and did not have any conversation with the Guards about the incident at that time or later. Regarding the lanyard, asked how this worked within the shop, he explained that if a person required special support or help for a hidden disability, they could wear the lanyard and they could be provided with support. Asked if the person was required to provide a letter of disability if they were unable to wear a mask, the witness said, yes (including in order to get a lanyard for the same reason). The witness confirmed that his understanding of the policy was that if a person wanted an exemption, they had to provide a letter from a GP. Asked if others were asked to leave the store who refused to wear a mask, he said, yes, if they were not going to wear a mask and yes others had provided letters for lanyards or as an exemption. Yes, Guards had been called previously in other situations where a person refused to wear a mask.

Richard Kenneally, Deputy Manager

Mr Kenneally was asked about the policy of Tesco at the time regarding mask wearing. He replied that there was signage up around the requirement to wear a mask. He referred to if a person was medically exempt that they should talk to a staff member confidentially to explain why they could not wear them. Not everyone was required to provide a doctor’s letter. The general guidance was to avoid conflict and to give the person an opportunity to give a reason. Referring to the previous witness the Chair asked the witness if a person seeking an exemption was required to provide a GP letter and the witness said, no. What was required was a reasonable explanation, that’s it. There were he said up to 30,000 people a week attending at the store, and it would not be possible to allow everyone to attend without wearing a mask and therefore a reasonable explanation was required. When asked about the policy of Tesco and to explain the term exempt, the witness then spoke about it being necessary to provide some sort of a letter.

Note: It is fair to say that there was some confused evidence and some conflict between the evidence given by the two witnesses for the Respondent in terms of the policy of the Respondent regarding medical or other evidence of an exemption. The Respondent was asked by the Chair to provide a copy of the policy which was issued to the stores and to copy that policy and any statement to accompany the policy to the Complainant who in turn could submit any comments in response, all for the consideration of the adjudication officer.

Respondent’s Position – Preliminary Matter – Time Limits

The position of the Respondent is that the complaint was recorded as received on the 15th of July 2022 and is therefore out of time. Whether it is out of time by one or two days is irrelevant, that the law provides that an extension of the six-month time limit can only be granted by an adjudication officer when reasonable grounds exist and provide an explanation for the delay outside of the initial six-month period. No reasonable grounds have been advanced in this case and the position put forward by the Complainant of some technical difficulties in uploading material do not provide grounds consistent with the legislation.

The Respondent Position on the Complaint

It is for the Complainant to establish facts from which it can be presumed that prohibited conduct occurred. The Complainant has not provided the WRC with evidence which establishes that he was discriminated against on grounds of disability. The management at the Respondent store owed a duty to other customers and staff to act in a reasonable manner when customers did not comply with the requirement to wear a face covering. The actions of the staff at the Respondent store were proportionate and reasonable and they were entitled to take reasonable steps to prevent inappropriate behaviour being engaged in on the premises. The Respondent had a legal duty to ensure compliance with the requirement to wear a face covering. Referring to Anthony Lyttle v Buywise Discount Stores, Costcutter North Strand (ADJ00032493) the Respondent pointed to the finding “that the failure of the claimant to provide any evidence of a disability, other than his own oral evidence, amounted to a failure to discharge the evidential burden imposed on a claimant by section 38A.” Other cases were also cited including Tompalski v O’Higgins Home Value Hardware (ADJ32638), and among others Butler v Lidl (ADJ-00035913). It is submitted that the Respondent and its staff acted lawfully and reasonably in asking the Complainant to comply with the statutory obligations imposed on the Complainant and the Respondent under the 2020 Regulations. It is submitted that the Complainant made no request for reasonable accommodation for the purposes of the 2000 Act and did not provide the Respondent with any opportunity to so accommodate the Complainant. Detailed references to S.I. 296/2020 were also submitted.

The Complainant failed to notify the Respondent adequately of any disability on his part. In their summary of the case following evidence the Respondent referred to issues between the statutory instrument and the Equal Status Act which are different legislative strands being mixed up together. In relation to the statutory instrument, it provided that citizens were not to be in public places without a mask and the Respondent had a statutory obligation to take remedial steps to ensure compliance with the Regulations and that this was important to stress. In that regard section 14 of the Equal Status Act was cited at section 14(1) where it was submitted that this does not appear to have been considered previously by the WRC:

“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 or order of a court”.

As the Respondent was acting pursuant to a statutory instrument, its actions are not prohibited discrimination under the ESA 2000. Any reasonable steps taken to ensure compliance with the statutory instrument are therefore not unlawful. It was Mr Kenneally’s evidence that in circumstances where a person had a hidden disability that the store had a policy where they could accommodate such persons, and this was reasonable accommodation. In the case of the Complainant, he was known to come into the store without wearing a mask; there had been an altercation in the past; that he had to be confronted about not wearing a mask and his response was to say to call the Guards; he had no evident disability; and it was reasonable in the circumstances to ask for demonstrable evidence of a disability. A declaration of a medical exemption was not sufficient. Referring to section 4(1) of the Act which states:

“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.”

It was stated that all that is required is that to provide special treatment or facilities was that the person would be able to demonstrate that they had a disability, and their requirements would be accommodated. They must provide enough information to satisfy the test at section 4(1).

Referring to the medical report of 2021 and the statutory instrument where it talks about medically exempt, medically exempt equals many things and only one cause is a disability. Distress for not being able to wear a mask is not necessarily a disability which prevents a person wearing a mask.

Referring to the video evidence, the Complainant went into the store on the date; he was not wearing a mask; his attitude when approached by the security guard was that there was no need for him to wear a mask; he took the step of recording the event and this together with the way in which he approached, the way he spoke to staff and the way he acted are evidence of a disposition that he was opposed to wearing a mask. He was aware of the lanyard policy, and he could have approached a member of staff to have that applied to him. It was not enough for the Complainant to say that the Respondent was not entitled to have any medical evidence when the Complainant had a document, he had shown that document indicating his disability to other parties, except to the Respondent.

There is no dispute that the Respondent is the provider of goods for the purposes of the Equal Status Act 2000.

There is no dispute that the Complainant submitted a notice of his complaint in an ES1 within the time limit specified in section 21(2) of the Act.

As the Respondent did reply to the ES1 on 9 March 2022, there is no inference to be taken from a failure to respond.

Preliminary Issue-Time limit for the purposes of Section 21(6) of the Equal Status Act.

The following are the relevant extracts from section 21 relating to the procedures to be followed by a person prior to and in making a complaint to the Workplace Relations Commission.

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

And

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6)   (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

       I have decided against dismissing the complaint under section 21(6) as set out in bold above, for the following reasons:

-          There is evidence that the Complainant was in contact with the WRC on July 14th when he sent an email some twenty minutes before midnight regarding difficulties with the system. This was followed by further correspondence with the WRC on July 15th. Strictly speaking the complaint was not received with the six months provided under the relevant subsection, but when I am not in a position to dispute his account of difficulties, I consider that his explanation should be accepted.

-          Of greater significance in deciding against dismissing the complaint by application of section 21(6), is the contradiction between the terms of that subsection in the obligations placed on a Complainant by the terms of  of sub section (4) . From that subsection, there is a mandatory direction to the WRC, that a complaint shall not be investigated until a complaint is submitted, only after the Respondent has replied or a period of one month has elapsed after the ES1 or its equivalent was issued to the respondent. The effect of clause 21(4) is that no Complainant has an effective six months after an alleged act in which to submit a complaint to the WRC. In this case, given that the ES1 was sent on 09.02.23 , the earliest possible date on which the Complainant could have submitted a complaint to the WRC was 08.03.22. Allowing the Complainant six months on which to make a complaint to the WRC would move the time limit of six months from 14 July to the 07.09.22(applying a very strict interpretation of a calendar month).

-           

-          To apply the terms of section 21(4) to this or any Complainant, would mean that alone of all of the enactments which are comprehended by the Workplace Relations Commission and where an initial six-month time limit is specified, the practical  time limit for referring a complaint to the Commission would be five months for those complaints under the Equal Status Act, 2000 caused solely by the mandatory wording of section 21(4). This is not the first occasion where I have made a similar observation very recently regarding the effect of the terms of section 21 on Complainants. On this occasion, given the marginal nature of any omission under 21(6)(a)   I am prepared to extend the time limit provided for in section 21(6)(b) to the Complainant as meeting the test of a reasonable cause, that cause being the  the terms of the legislation itself and the evident conflict between the allowance of time provided for and the mandatory provision contained elsewhere in the same section.  There is no reason to believe than that this conflict was intended or at least that the legislators intended to reduce the time limits for making a complaint under this legislation versus all others in this general area of legislation. In a legal debate, the terms of interpretation Act 2005 might come into play here. However, I am confining my justification to the reasons set out.

The submission of the respondent on the application of the time limit at section 21(6)(a) is not accepted.

Second Preliminary Issue-application of Section 14 of the Act

Certain measures or activities not prohibited.

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 or order of a court,

(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State;

In submitting that this section should be applied to the actions of the Respondent in the context of an obligation to apply SI 296/2020(Health Act 1947), Counsel for the Respondent did say that he had not seen any decision of the WRC which relied specifically on the application of section 14 to the obligations placed by that enactment on the Respondent. I agreed then and now with his observation. A reason for this situation in my own experience is that argument was not previously and specifically made in any case that I heard and although the terms of the section are mentioned in some AO decisions, that a complaint was dismissed solely on that ground is not something I have observed. In my own case, I have referred specifically in Tompalski cited by the Respondent, to the role of the AO/WRC as one to interpret the Equal Status Act and not the statutory instrument, a position which has been supported in later decisions. To follow the line of argument put forward by the Respondent in this case is to again call on an AO to interpret the statutory instrument.  It may be argued that the terms of section 14 brings that enactment within the scope of the legislation. However, this is the very argument repeatedly made by Complainants in these cases, that the terms of that statutory instrument require only a reasonable excuse and not any medical evidence of a disability.  The argument about the S.I. rapidly becomes a circular one with each side arguing what is meant by a reasonable excuse which rather than simply eliminating any obligations under the Equal Status Act, does nothing to resolve the competing arguments, on both sides. The statutory instrument left many service or goods providers trying to apply its terms taking their own meaning or landing them in a conundrum as to what it meant and many customers interpreting it as suited their circumstances. Hence all the complaints to the WRC. In my view there is nothing so clear cut about the terms of the statutory instrument that an adjudication officer could go so far as to determine that it qualifies under section 14 of the Equal Status Act as an enactment which had the effect of not prohibiting any discrimination against a person with a disability in relation to the wearing of face coverings at the pertinent time.  Finally on this point, the guidelines issued by Tesco to their own staff suggest that they did not believe that the regulations permitted them to claim that otherwise prohibited treatment was no longer prohibited by application of  S.I. 296/20.

The submission of the Respondent on the application of Section 14 of the Equal Status Act is not accepted.

The definition of a disability under the Equal Status Act includes:

(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 has provided certified evidence of a disability in support of his claim that he was unable to wear a mask on medical grounds at the time of the incident in January 2022. I am satisfied that the condition falls within the definition of subsection (e) of the definition. It is clear from that medical certificate that the Complainant was unable to avail of at least one other service where he was required to wear a mask to avail of the service and that an accommodation was required, which did not require him to attend in person to avail of the service. This was a case of a hidden disability, not self-evident to the Respondent.

Discrimination on ground of disability.

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.

Having accepted that the Complainant had and had medical evidence of a disability at the relevant time, the nub of the issue is whether the Complainant was subjected to discrimination by the staff member and security worker who interacted with him in the Tesco store on the day in question.

Before setting out a finding on the nub of the issue, the references to the wearing of a lanyard as a form of possible accommodation or available support merit comment. Recognising that the facility of wearing a lanyard is designed to be helpful to a person requiring additional or personal support to avail of the services provided by Tesco, the Complainant in this case did not require any personal support due to nature of his disability. There is nothing whatsoever in the notice at the premises which suggests that wearing a lanyard would be accepted as providing proof of an accepted exemption to the requirement to wear a face covering at that time. Accepting that it was the Complainant who provided the photo of the lanyard and the Respondent who then travelled that path at the hearing, it is to all intents and purposes, a red herring.

What occurred on January 15th, 2022, in the Paul Street branch of Tesco were two unseemly interactions with the Complainant involving one direct and one contracted worker. On each occasion it was the workers who approached the Complainant and effectively started a negative exchange with him. While it could be seen from the video evidence that the first worker did little more than broach the subject with the Complainant and the latter immediately reacted negatively and began filming the worker at his work in his workplace, nonetheless the disposition of the worker was such as not to accept the excuse provided by the Complainant and then to engage in exchanges about calling the Guards. As a result, An Garda Siochana were indeed asked to attend the premises, for what purpose is not entirely clear but it can only be assumed that the reasonable excuse offered by the Complainant was not accepted.

The second approach to the Complainant was if anything more negative and confrontational by the employee. On the balance of probabilities, based on the evidence at the hearing, this negative attitude towards the Complainant had less to do with him not wearing a mask, given he had now selected his goods and was paying for them, but more likely was stimulated by the alleged conduct of the Complainant towards another employee some two weeks previously. I found it surprising as well as interesting that nobody from Tesco stayed and spoke with the member of An Garda Siochana or made any inquiries about what had occurred after he arrived. The question arises which aspect of the policy as circulated by the Respondent was being applied by the workers in that situation. The Complainant was not pleasant towards any worker but neither was he so aggressive that calling the police was necessary.  Having reviewed the advice to staff from the Respondent, it is clear that what occurred on that day in the manner in which the Complainant was treated was a breach of the advice and guidance to workers dealing with such situations.

What occurred on the day was unpleasant and contrary to the stated guidance of the Respondent. Nonetheless the Complainant was not denied service, he was allowed to complete his shopping. The wearing of a mask was not made mandatory in his case in order to avail of a service, as was the case in many instances before the WRC, and as such the reasonable accommodation which he says should have been provided, not to have to wear a mask due to his exemption on medical grounds, was actually accommodated, albeit with bad grace.  While the circumstances did not justify a police presence, it was the Complainant both on the way into the store and at the checkout who referred to the involvement of An Garda Siochana as though they were going to resolve his issue, which from the video evidence was not the case. If anything, they went further than the workers in insisting that he show evidence of his exemption at the local station.

Given what occurred, that the Respondent offered compensation to resolve the matter based on the attitude or behaviour of those workers who acted contrary to the stated policy is understandable. However, they have no case of discrimination to answer in this instance.

The finding in this case is consistent with that in ADJ-00037174 Vos v Murrays Spar.

CA—00051756-001 The complaint of discrimination brought by James Jackson against Tesco Ireland Limited under the Equal Status Act  is not well founded.

Discrimination complaint - disability/reasonable accommodation -requirement to wear a mask in retail setting/Covid