Complainant

Respondent

Parties

Agnese  Krausa

Donohoes Supervalu

Complainant

Respondent

Anonymised Parties

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Representatives

Ms. Christina Byrne, BL instructed by Tracey Brady McGuigan Solicitors 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-00042497-001

15/02/2021

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

CA-00042497-002

15/02/2021

The respondent is a retail shop.

The Complainant was a customer of the Respondent who alleged discrimination as follows:

CA-00042497-001           Discrimination on the prohibited grounds of family status and disability by discriminating against her in the provision of goods and services on 15th October 2020

CA-00042497-002           Discrimination on the prohibited grounds of family status and disability by discriminating against her in the provision of goods and services on 17th October 2020

The respondent disputed the claims of discrimination and without prejudice to that position contended that the Complainant had not identified any disability as defined in the acts in any of her correspondence with the Respondent or with the WRC; not had the Complainant disclosed any evidence in support of any such disability.

In addition to her complaint form, the Complainant provided copies of emails from her to the Respondent setting out her concerns.  She also provided a copy of her notification to the Respondent under the Equal Status Acts, 2000-2015 (Form ES.1), together with the Respondent’s reply (Form ES.2).  The Complainant did not set out details of her complaint in her complaint form, nor did she provide a submission at any time.

CA-00042497-001          

In the complainant issue by the Complainant to the Respondent head office on 16th October 2020 the Complainant outlined that she felt very upset and discriminated against in the Respondent’s shop due to her treatment on 15th October 2020.  She outlined that she went to the shop at around 7 pm, got baby food and went to the till to pay for it.  She stated that she was waiting to pay when she realised someone was shouting at her “where is your mask?”  She stated that she looked around and saw a young woman wearing a mask, standing at the third till.  She stated that the woman did not approach her.

The Complainant outlined that she replied that she was exempt and moved closer to the staff member as there were other customers in the shop and as she wanted to be clear on what the problem was and why the woman was shouting at her. She stated that the woman then asked her to show a medical letter confirming her exemption.  In response to a query from the Complainant the staff member identified herself as EB, Supervisor.

The Complainant stated that she was shaking, that it was a very stressful situation and that all the customers were looking at her.  She stated that she felt she was being publicly shamed because she was not able to wear a mask. She stated that she went to her car to calm down.

The Complainant outlined that she was aware of the policy on mask wearing and was familiar with the law about masks and referenced S.I. 296 of 2020.  She stated that she wanted to make sure that Ms. EB was fully trained for the position she held because she, as a customer, knew the law.  She stated that she felt that Ms. EB could not work with people because she had shown a totally disrespectful attitude to her as a customer and she indicated that if the respondent continued to behave in that manner, she would take legal action.

The Law

In her complaint to the Respondent, the Complainant drew attention to S.I. 405 of 2020 and advised the Respondent that the right to request proof of reasonable excuse had not been extended to a responsible person under the relevant premises regulation.

In addition, the Complainant drew attention to the Equal Status Act and stated that in circumstances where the Respondent refused access to goods and services to a member of the public, where that person cannot wear a face covering and where that person had advised the Respondent that they have reasonable excuse under the regulation, any such refusal of service would be illegal under the Act.  The Complainant further outlined that the Equal Status Acts outlaw discrimination in the provision of goods and services on the basis of the 9 protected grounds, which includes disability and she set out the definition of disability as per the Act.

The above complaint was forwarded to the local management for response on the same day and when the Complainant had not received a response, she emailed the head office again on Saturday 17th October 2020.

CA-00042497-002

In her email of 17th October 2020 to the Respondent head office she stated that she had not received any reply to her first complaint and that she had again had a “horrible” situation on that day (i.e. 17th October).

She outlined that she went to get goods at circa 5 pm and that there was a very big sign up that indicated “No mask – no entry”.  She indicated that there was also a smaller A4 size notice stating – “no exemptions accepted”.  She stated that she was very surprised that the supervisor “K” refused her entry to the shop to get her goods.  She stated that she spent about an hour talking to “K” and another co-worker, that they rang the store manager and that she spoke on the phone directly to the store manager.  She stated that the store manager said that the Complainant could not enter the shop without a mask and that she didn’t care that the Complainant was exempt.  The Complainant outlined that the store manager had said that this was nothing to do with government policy, that it was store policy and that the store had its’ own rules.

The content of the above email formed part of the Complainant’s case as outlined in her Form ES.1.  In addition, the Complainant also stated in the Form ES.1 that the workers in the Respondent store again asked her for medical proof of exemption.  She stated that in the end “K” asked for her personal details to enter the store.  She stated that “K” said she could enter but that she was very nasty, and she continued to talk to the store manager on the phone while she followed the Complainant, “keeping an eye” on her.  She stated that when she paid for her goods “K” asked her for her phone number as the store owner would make follow up contact.

The Complainant stated that she had been a customer of the Respondent since 2006 and that she was a mother of a child with special needs.  She stated that her son was 12 years old with Downs Syndrome and that usually she used outings to the Respondent store as an opportunity for training in social and life skills.  She stated that after the two encounters with the Respondent shop, she could not see any possibility of using the shop in that way in the future as she would not want to put her son in such a unpleasant situation.

The Complainant appended 2 photographs of the signage outside the store, one which stated “Face coverings must be worn here” and the smaller one which was adhered to the larger one, stating “No exemptions accepted – level 4 – allow us to do your shopping if you feel you cannot wear a face covering.”

Complainant evidence Day 1 of hearings:

On Day 1 of hearing the Complainant confirmed her complaints to related to 2 separate incidents on 15th October 2020 and again on 17 October 2020. 

CA-00042497-001

On Day 1 of hearing, she further confirmed that in relation to the alleged incident on 15 October 2020 she was not making a complaint of discrimination of the family status ground and that she had erroneously submitted same.

The Complainant stated that she attended the Respondent store on 15 October 2020 at 7pm, that she had an urgent situation as she had a 6-month-old baby who was mixed feeding and unsettled and she had to purchase baby food.  She stated that while in the store she was careful to keep her distance and that she did hand sanitize.  She stated that she was ready to pay for her purchases when she heard a shout “where’s your mask.”  She stated that she noticed a staff member standing at till 3 and she asked her if she was talking to her.  She advised that she later understood this person to be Ms. Emma bell, supervisor and that Ms. Bell advised her that she needed to prove that she was exempt from wearing face covering.

The Complainant stated that she was shaking and ready to cry and that a lady in the queue let her go ahead and pay for her shopping.  She stated that as she was upset and shaking, she sat in her car to calm down and that another staff member and the supervisor came out and apologised.

CA-00042497-002

The Complainant outlined that on 16 October 2020 she rang the HSE hotline and queried whether she needed proof of exemption if not wearing a face covering.  She outlined that the response was that she did not require proof in general, that it was only required when using public transport.

She stated that she again attended the Respondent store on 17 October 2020 at circa 5 pm.  She stated that she had a son with special needs who was 12 years old and that he had Downs Syndrome and was on the autism spectrum.  She stated that she used the experience of shopping as an opportunity for him to learn life and social skills.  She stated that she and her son walked to the shop,  and that she saw a large yellow sign outside which stated “no mask, no entry.”  She stated that she made the decision quickly to go home. 

The Complainant stated that she later returned to the shop in her car.  She stated that she was worried about her son’s education because she could not now go to the shop anymore as the sign was clear that you could not enter the shop without a mask.

The Complainant described speaking with a staff member, whom she referred to as “Kate” and she stated that Kate quoted the store policy to her.  She stated that she was most of an hour at the door but that she was not let in.  she stated that Kate was very strict, that she tried to call the manager and that there were many staff around.  She stated that she could not talk to the manager because she wasn’t present and that she suggested the guards be called as she needed her shopping.  She stated that Kate refused to call the guards.

The Complainant outlined that Kate then called the store manager who was quite rude to her and who advised that “I don’t care that you’re exempt…It’s not about government, it’s about store policy.”  The Complainant stated that the owner broke the law by refusing entry for a person who was exempt.  She stated that a staff member then offered to give her a mask, telling her that she could pay for it on her way out.

The Complainant confirmed that she was ultimately allowed into the store but that she was asked for her personal details and advised to keep her distance from others.  She stated that she noticed that Kate was following her.  She stated that she had been told that the reason for requesting her personal details was in order that the shop owner could phone her, and she confirmed that he never rang her.

Complainant evidence Day 2 of hearings:

On Day 2 of hearing the Complainant confirmed the content of her email of 20th October 2020 as the substance of her complainant and she confirmed the details of the signage observed by her outside the store on 17th October 2020. She stated that the respondent made up its own law when it stated that exemptions were not acceptable.  She stated that the Respondent staff sought a copy of medical evidence of her exemption and that this was not permissible under the law, and she confirmed that she was exempt from wearing face covering.

In relation to the alleged incident of 15th October 2020 she stated that she told Ms. Bell that she was exempt, and that Ms. Bell asked her to prove her exemption.  She stated that she advised Ms. Bell that she wasn’t obliged to provide evidence and she stated that Ms. Bell was just “doing her job”, that she was “doing what she was told.”

In relation to the alleged incident on 17th October 2020 the Complainant noted that while children were exempt from wearing a mask, she would have been attending the store as her son’s assistant and that he needed to be able to lip read in order to communicate with her.

Cross examination of the Complainant:

There was no cross examination of either party on Day 1 of hearing, but the Adjudication Officer did ask the Complainant to clarify her disability. The Complainant responded that she did not have any disability but that she did have a medical condition that required her not to wear a mask and that she was on medication.  The Complainant did not disclose any further information pertaining to that medical condition.

The Complainant noted that in relation to the interaction which took place on 17th October 2020 she had advised “K” about her son’s condition and asked to speak with the manager.  The Complainant confirmed that she was advised that the manager was not on site, and she was facilitated with talking to her by phone.  The Complainant outlined that Ms. Maguire advised her about the store policy, that it was a private business and so had its own policy in place.  She confirmed that she had advised Ms. Maguire about her son’s disability but that she had never said that she had a disability.

The Adjudication Officer also sought clarity from the Complainant as whether or not her child was with her during the discussion with staff about entering the store.  The Complainant confirmed that he was not with her, that she had brought him home when she saw the signage outside.  She stated that this was because she could not communicate adequately with him if either of them was to wear a mask. She stated that “no exemption was accepted and there was no offer to accommodate the child.  She stated that the poster quoted the HSE and government but not what was in the law.

General

The Respondent did not provide a submission in advance of Day 1 hearing but did provide a submission prior to Day 2 of hearing.  However, the Respondent did provide a copy of the ES2 Form and a comprehensive statement from the employee SO’N who was involved in the matter.

In its submission, the Respondent noted that the Complainant had not set out the details of her complainants within her complaint form and so had established her allegations from the two complaints which she submitted to the Musgrave Contact Centre email address on 16th and 17th October 2020.  The Respondent further noted that the Complainant had not provided any legal submission, nor had she identified any disability as defined in the acts in any of her correspondence with either the Respondent or the WRC, nor had she disclosed any evidence in support of any such disability.

The Respondent acknowledged that the Complainant had confirmed at the first hearing that the first complaint relating to 15th October 2020 was not a family status matter.  The Respondent refuted the allegation that the Complainant was discriminated against on the grounds of disability and submitted that the Complainant was never refused service on either occasion.

The Respondent submitted that the Complainant, for reasons unknown to the Respondent determinedly refused to wear a face mask during level 3 Covid 19 restrictions, which it described as “an ever evolving and deteriorating situation” during that specific week.  The Respondent further submitted that after submitting her complaint on 16th October the Complainant then attended the store the following day to have a similar interaction with the Respondent’s employees, to be guided through their policies and again was not refused service.  The Respondent noted that by the following Monday, 19th October 2020 the government gave notice that the State would be moving to a level 5 lockdown.

In addition, the Respondent submitted, without prejudice to the foregoing, that any and all of the interactions now impugned by the Complainant arose in the context of the relevant sections of the health act 1947 (as amended), including but not limited to section 31A and all relevant statutory instruments including, but not limited to statutory instruments 296/2020 and 404/2020which state its purpose as to “having regards to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid 19”.  In this context the Respondent submitted that the said interactions carry the full protection of section 14 of the Acts and the Respondent submitted that it relied upon same accordingly.

Preliminary legal objections

The Respondent submitted that the Complainant had not confirmed from what disability (if any) she allegedly suffered and noted that it remained unaware of such disability.  The Respondent further submitted that in the context of a disability discrimination complaint, in order to establish a prima facie case of discrimination, the Complainant must first show that she was suffering from a disability as defined by the acts and that any alleged less favourable treatment occurred/arose due to that disability, not because she was not wearing a mask or a face covering.  The Respondent submitted that notwithstanding the fact that no discrimination nor difference in treatment occurred, the Acts do not cover a difference in treatment solely on the basis of wearing a mask or face covering which was precisely the case made by the Complainant.

In its submission the Respondent outlined that, in order to succeed under the Acts, a complainant must show that a difference in treatment occurred because she laboured under a specific disability as defined by the Acts and that the Respondent was aware of the specific disability.  The Respondent submitted that the definition of disability is expressly dealt with in the acts and that the Complainant cannot assume that she did not need to appraise the WRC in her complaint form of her disability, in an action for discrimination on the ground of disability.

The Respondent submitted that in light of the above it must respectfully be assumed that the Complainant was/is not suffering from a disability as defined by the acts and that furthermore the respondent’s lack of knowledge of such disability meant that the entirety of her complaint, deriving from that protected ground, must fail automatically.  In support of this position, the respondent opened the case of Lyttle v Buywise discount Stores (ADJ-00032493) and the case of Tompalski v T O’Higgins Homevalue Hardware (ADJ-00032638).

The Substantive Case (CA-00042497-001 & CA-00042497-002)

The Respondent submitted that the Complainant attended at the respondent’s Supervalu store on Thursday 15th October 2020 and Sunday 17th October 2020.  The government has extended level 3 lockdown to all counties on 6 October 2020 and the Respondent cited the official government press release as stating that “from midnight tomorrow 6 October, all remaining counties will be placed on Level 3 under the Plan for Living with Covid-19.  This action is based on a review of the current public health advice and is in response to the deteriorating situation with the virus across the country.  Al counties will be at level 3 for a period of 3 weeks until midnight on 27 October 2020, at which time the situation will be reviewed by the government, based on the status of the virus and public health advice.”

The Respondent noted that the statement continued “placing all counties at Level 3 has the following implications:

·       “Visitors to private homes and gardens should be limited to a maximum number of 6 from one other household

·       People should remain in their county (they must not leave to travel either domestically or internationally), with the exception of those who must travel for work, education and other essential purposes…

Business and Services

              All retail shops and shopping centres may remain open. All service such as hairdressers, beauticians, barbers, opticians may remain open with strict adherence to sectoral guidance on protective measures.”

The Respondent submitted that it was important to note that the State, at that time, was grappling with the emergence of new variants of Covid-19 and was in preparation of a second wave of the virus, aggravated further by entering into the winter months. The Respondent submitted that, in fact, on the Monday following the Complainant’s service at the Respondent’s premises that state released a press statement that the strict level 5 lockdown restrictions were to come into effect.  The Respondent noted that it was upon this background of the global Covid-19 pandemic that the Complainant’s alleged discrimination on the grounds of disability arose.

The Respondent submitted that on Thursday 15th October 2020 the Complainant, was at the Respondent’s premises beside the trolly checkouts and was approached by a member of staff, Ms. Emma Bell, who attempted to ask her to wear a face covering, in line with legal requirements and Government guidelines and that the Complainant replied that she was exempt.  The Respondent submitted that the following ensued:

·       That Ms. Bell asked if the Complainant had a letter from her doctor to confirm her exemption and that Ms. Bell attempted to explain to the Complainant the store policy and that every customer was required to wear a face covering while in the store.

·       That the Complainant became agitated and reprimanded Ms. Bell and asked her “what right she had to ask her to wear a face covering.”

·       That Ms. Bell again attempted to explain the store policy for the safety of the Complainant and the safety of other customers and staff.

·       That the Complainant ignored Ms. Bell and proceeded to check out and walked away

The Respondent submitted that at no time was the Complainant refused entry to the store, the Complainant completed her shopping and was never denied access to the Respondent’s services.  The Respondent submitted Ms. Bell’s contemporaneous written account of the interactions which she provided to the Respondent on 21st October 2020.

The Respondent noted that the Complainant issued a detailed complaint to the Respondent on 16th October 2020 outlining in detail the statutory instrument governance of face coverings. The Respondent noted that the Complainant displayed a “great understanding and knowledge of the regulations in place at that time.”

The Respondent submitted that on the following day (Saturday 17th October 2020) the Complainant again attended the Respondent’s store not wearing a face covering.  On this occasion the Complainant was approached by Ms. Kate Kellegher who was informed by another member of staff that the Complainant was not wearing a face covering as she was exempt and who had advised that when asked if she could provide evidence of the alleged exemption the Complainant had become agitated. Again, the store policy was explained to the Complainant that face coverings were required for the safety of all, both customers and staff and that the store had a duty of care to provide protection to everyone in the store.  The Respondent further submitted that the Complainant “in a condescending manner” informed Ms. Kellegher that it was not the law to wear a face covering, that the shop did not make the law and could not make her wear one.  Ms. Kellegher again explained the policy and offered the Complainant accommodations, at which point the Complainant continued to speak over Ms. Kellegher and question the store’s authority as regarding face coverings and threatened to sue the store.

The Respondent submitted that the Complainant asked to speak to the manager and was informed that the manager, Ms. Sinead Maguire had gone home but that she was facilitated in speaking to the manager by phone.  In addition, Ms. Kellegher spoke to the manager and left a voicemail for the store’s owner, Mr. Donohoe.

The Respondent submitted that the Complainant was allowed enter the store without wearing a face covering and completed her shopping.  The Respondent submitted that, again, the Complainant was not refused entry or service at the Respondent’s premises.  The Respondent appended a copy of Ms. Kellegher’s statement of events which she had provided to the Respondent on 21 October 2020.

The Respondent noted that it had a set of procedures in place due to the national emergency entitled MRPU Covid-19 Store Prevention and Mitigation Guidelines, and that the Respondent’s employees attempted to tell the Complainant about those procedures on both occasions. The Respondent further submitted that unfortunately the Complainant ignored every attempt of the Respondent’s employees to explain the policy and the government guidelines as per S.I. 296 of 2020 as extended by S.I. 404 of 2020.  The Respondent submitted that instead the Complainant became agitated and on the second occasion threatened to sue the Respondent.

The Respondent submitted that it was notable that the interactions described took place before the end of the strict lockdown restrictions, six months into the Covid Pandemic and where the Respondent had gone to considerable expense and effort to protect its staff and customers and had fitted out the premises to be as “Covid proof” as possible.  The Respondent submitted that it took very seriously its obligations to its customers and staff with regard to minimising the risk of contracting Covid 19 and at all times used its best endeavours to ensure that all its customers and staff adhered to social distancing requirements and wore face coverings where appropriate within the store.

In relation to communications between the parties the Respondent submitted that on the morning after the first incident the Complainant wrote to the Respondent’s Musgrave Contact Centre email and that this correspondence was received by the respondent before 12 pm on 16th October 2020. The Respondent noted from the content of that correspondence that the Complainant “appeared to be well versed in the legal provisions in the immediate aftermath of the alleged discrimination by the Respondent” and drew attention to the Complainants ability to quote from complex statutory instruments.

The Respondent provided clarity that it had never received from either the WRC or the Complainant any medical records or reports in respect of the instant case and was a stranger to the Complainant’s alleged disability.  In addition, the Respondent submitted that it did not understand and/or acknowledge that on the occasion of her alleged complaint regarding the 15 October 2020 that she was refused service.

The Respondent submitted that on 18 October 2020, the Respondent received a second email through the Contact Centre, from the Complainant dated 17 October 2020 and outlining “unfortunately, I didn’t get any reply from you where you sent my complaint letter.  I sent to you my email with complaint on the 16th October 2020.” The Respondent pointed out that again the Complainant did not disclose any disability nor that she was allowed access to the store and was not refused service.

The respondent noted that the Complainant concluded by saying “My opinion, that in this very hard time for all of us, Supervalu shop and brand totally discriminating people.  I don’t have a choice to do not report about all this to WRC and IHRC”.

The Respondent submitted that on 19 October 2020, The Respondent’s owner, Mr. Donohoe emailed the Complainant in which he explained the various accommodations the store could make for the Complainant to use its services and stated “on the 10th August, the government introduce law that face coverings are mandatory for all staff and customers who work and shop in a supermarket.  We have a duty of care to the staff that we employ and to the customers that enter our premises to ensure we provide the safest environment for our staff to work in and for our customers to shop in.”

The respondent submitted that, notwithstanding the very clear reasons for the Complainant to comply with the policy adopted for social distancing and face covering s within the premises, the Complainant alleged wrongly that the action of the Respondent’s staff was in some way motivated by discrimination.  The Respondent submitted that it refuted what it described as “wholly disingenuous allegations”.

Preliminary Issue

The Respondent noted the definition of “disability” set out in section 2 of the Act:

“disability means –

(a)    The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)    The presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)     The malfunction, malformation or disfigurement of a part of a person’s body,

(d)    A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)    A condition, disease or illness which affects a person’s thought processes, perception of reality; emotions of judgement or which results in disturbed behaviour;”

In the context of the above definition, the Respondent submitted that the Complainant must establish that she comes within the remit of the acts to be covered by the disability ground.  The respondent submitted that the complainant had not identified any disability to the Respondent and was obliged to provide evidence of any disability in order to proceed with her complaint before the WRC.

The Respondent also noted that the Act defines discrimination at Section 3 of the act as follows:

“(1) For the purposes of this act discrimination shall be taken to occur –

(a)    Where a person is treated less favourably that another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”

The respondent further noted that section 38 A of the Act deals with the burden of proof as follows: -

“(1) 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.”

The Respondent submitted that the foregoing provisions oblige the Complainant to provide evidence from which it may be presumed that prohibited conduct occurred and having regard to the totality of the foregoing it submitted that the Complainant had not done so and that, in fact, she could not do so.  The Respondent submitted that this was because the Complainant had not be treated any less favourably that any customer at that time.

The Respondent submitted that furthermore, the requirement for an appropriate comparator is set out in section 3(2) of the act and that it was for the Complainant to show that she was treated less favourably than someone else was or would have been in a comparable situation.

Section 14 Exemption

The Respondent submitted that the Complainant’s claim pursuant to the acts pertained to request(s) by the Respondent for her to adhere to regulations in place within the store that were adopted to protect staff and customers during what was a national emergency and a global pandemic.  The respondent submitted that those specific regulations included the requirement to wear a face covering and as such, where the Respondent was obligated by the requirements of the Health Act 1947 (as amended), including but not limited to those arising from section 31A(1)(f) and (g) and all relevant statutory instruments thereto, including but not limited to S.I/404/2020 and S.I>296/2020 to ask the Complainant to adhere to its policy in the context of the national emergency and global pandemic; it was without question that the section 14 exemption applied and the complaint should be dismissed.

The Respondent submitted that, notwithstanding the Respondent’s firm position that no discrimination took place, without prejudice, it respectfully submitted that where the Respondent was obliged under emergency legislation to implement various policies in order to protect its employees and the public, including but not limited to the maintenance of social distancing and the requirement to wear face coverings, it was entitled to rely o the section 14 exemption accordingly.

Conclusions:

In conclusion the Respondent summarised it’s position as follows:

·       That the Complainant was not refused service;

·       That the Complainant was not suffering from a disability as defined by the Acts and therefore has no locus standi under the Acts; or

·       That alternatively if she was suffering from a disability as defined by the Acts the Complainants failure or refusal to appraise the Respondent of her disability and/or to particularise same for the purposes of the within complaint rendered her complaints unstateable;

·       That the Complainant had not established a prima facie case in respect of her allegations of discrimination

·       That the Complainant had not identified a comparator or explained why she should be permitted to rely on a hypothetical comparator;

·       That the Complainant had not appreciated the Respondent’s bona fide attempts to accommodate her during the said global pandemic and national emergency;

·       That the Complainant had ignored entirely the respondent’s bona fide attempts to protect the public and its staff as required by law during the said pandemic

·       That the Respondent is entitled to rely on the Section 14 exemption.

Representations on behalf of the Respondent – Day 2

The Respondent representative outlined that there were 2 complaints but stated that no discrimination had occurred.

In relation to the interactions that occurred on 15th October 2020 the Respondent representative noted that the Complainant did complete her shopping and that the interactions took place when she was paying for her goods and was on her way out of the shop.  The Respondent representatice pointed out that, in these circumstances, there was no denial of service and therefore no discrimination occurred.

The Respondent representative drew attention to the preliminary issues contained in its submission in relation to the following:

·       That the Complainant had not disclosed any disability

·       That at the date of hearing the Respondent still remained unaware of any disability, nor was it aware of any disability on the dates of the alleged occurrences

Attention was drawn to the case of Lyttle v Buywise Discount Store where it was determined that issues relating to not wearing a mask was not sufficient of itself to demonstrate that discrimination had occurred, that there remained an obligation on the Complainant to establish a prima facie case.

The Respondent representative pointed out that the Complainant was not denied access to the store and, in fact, completed her shopping on both occasions.  In addition, the Respondent representative drew attention to the context within which the incidents took place, with level 3 restrictions in place which moved to level 5 lockdown within days.  It was pointed out that, in that context, the Respondent was doing his best to protect the public and staff and that safety for all was his priority.

The Respondent representative drew particular attention to Section 14 of the Health Act and outlined that the Respondent was relying upon the full protection of that provision.

The Respondent representative noted that the Complainant had confirmed on Day 1 of hearing that there was no complaint on the ground of family status in relation to her complaint relating to 15 October 2020.  She drew attention to the complaint in relation to 17 October and advised that young children did not have to wear masks, that the regulations regarding face covering did not apply to children, furthermore, she advised that the Respondent was unaware of the child, as the child was never brought to the store.

Evidence given at hearing – Mr. D Donohoe

On Day 1 of hearing Mr. Donohoe stated that he took pride in the customer service offered in his store, that he takes that element of his business very seriously and that he apologised to the Complainant if she didn’t receive the best quality service.

Mr. Donohoe outlined the store policy and the fact that staff had received extensive training on the policy.  He further outlined that in relation to Covid procedures things wee changing almost daily arising from directives from the HSE and from the head office of Musgraves.

Mr. Donohoe confirmed that in drawing up the policy the Respondent had consulted with the guards and had been advised to create their own policy.  He stated that Musgraves had provided the posters.

Mr. Donohoe confirmed that he sent an email to the Complainant on Monday 19 October.  He stated that no member of the public is required to leave their contact number but that they are asked if they would like to leave their number so that a manager can make a follow up call.

Mr. Donohoe advised that the Complainant was offered that the store would do any shopping she required for her.

General:

These complaints are of discrimination pursuant to the Equal Status Act.  Both complaints were made on the prohibited grounds of family status and disability and alleged that the Respondent discriminated against her in the provision of goods and services on 15th October 2020 and on 17th October 2020.

Prima Facie Case

I note that Section 5. -(1) of the act states that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

I note that Section 2 defines a service as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a)   Access to and the use of any place,

It is clear that the respondent is a provider of service to the public.  I am satisfied that the interactions between the Complainant and various staff member as agents of the Respondent fall within the meaning of a service as defined in the Act. I also find that the complainant was seeking such a service from the Respondent and that her complaint of discriminatory treatment comes within the scope of the Act.

The complainant in this case alleged that she was discriminated against and treated less favourably on the grounds of family status and on the grounds of disability. 

CA-00042497-001           Discrimination on the prohibited grounds of family status and disability

I must now consider whether the complainant has established discriminatory treatment on the family status ground.

At Day 1 of hearing the Complainant confirmed that she did not have a claim of discrimination on the ground of family status in relation to 15th October 2020 and that this complaint was made erroneously.

I must now consider whether the complainant has established discriminatory treatment on the disability ground.  In considering this matter, I paid close attention to the complainant’s written complaint form, her ES1 form, copies of emails between the parties and to the evidence given by her at hearing.

Section 85A (1) of the act provides: that “(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In any case involving an allegation of discrimination an Adjudication Officer must first consider the allocation of the burden of proof as between the complainant and the respondent. 

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if an Adjudication Officer considers them to be sufficiently significant to raise an inference of discrimination, then the

onus of proving the contrary shifts to the respondent.  If a complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination the claim cannot succeed.

It is for the complainant in the first instance to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent.

In Melbury Developments Ltd. V Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The established test for ascertaining if the burden of proof shifts to the respondent was set out by the Labour Court in its determination in Mitchell v Southern health Board [2001] ELR 201.  That test provides:

1)      It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so, he or she cannot succeed.

2)      If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination

3)      If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent.

In establishing a prima facie case of direct discrimination, the Complainant must therefore establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

In the instant case the Complainant did not identify a disability in her complaint form, in her ES1 Form or in any correspondence with the Respondent.  In addition, the Complainant confirmed at hearing that she did not have a disability but she confirmed that she was exempt from wearing a face covering.  The Complainant did not provide any further detail in relation to the reason for her exemption. It is settled law that a Complainant must provide evidence to substantiate a disability when claiming discrimination on this ground.  By her own admission the Complainant did not have a disability.

As the Complainant confirmed that she did not have a disability I must conclude that the Complainant has not succeeded in establishing a prima facie case of discrimination on the ground of disability.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status and disability ground.

CA-00042497-002           Discrimination on the prohibited grounds of family status and disability

I must also consider whether the complainant has established discriminatory treatment on the family status ground and on the ground of disability in relation to her complaint relating to 17th October 2020.  In considering this matter, I paid close attention to the complainant’s written complaint form, her written statement and to the evidence given by her at hearing.

Family Status Ground

In relation to the complaint that the Complainant was discriminated against by the Respondent on the prohibited ground of family status I note that in establishing a prima facie case of direct discrimination, the Complainant must establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

With regard to the first point above, I am satisfied that the Complainant in the within case, is a parent. I am also satisfied that the Complainant did not put the Respondent on notice of her status at the time of the incident and I base this conclusion on her own account of the incident of 17th October 2020.  In that description the Complainant made no mention of any discussion taking place between her and agents of the Respondent in relation to her status or her children and she confirmed at hearing that her son was not with her when she attended the store, as she had brought him home when she saw the signage.  In all these circumstances I must conclude that the Respondent was not on notice of the Complainant’s family status at the time of the alleged incident.

Furthermore, the Complainant did not submit details of any comparator whom she believed was treated in a more favourable manner.  There was no comparator outlined in her complaint form nor in her ES1 statement; nor was any evidence presented at hearing.  While the Complainant made mention of her parental status, she made no link between that status any actions or behaviours on the part of the Respondent.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.

Disability Ground

In relation to the complaint that the Complainant was discriminated against by the Respondent on the prohibited ground of disability I note that in establishing a prima facie case of direct discrimination, the Complainant must establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

In the instant case the Complainant did not identify a disability in her complaint form, in her ES1 Form or in any correspondence with the Respondent.  In addition, the Complainant confirmed at hearing that she did not have a disability but she confirmed that she was exempt from wearing a face covering.  The Complainant did not provide any further detail in relation to the reason for her exemption. It is settled law that a Complainant must provide evidence to substantiate a disability when claiming discrimination on this ground.  By her own admission the Complainant did not have a disability.

As the Complainant confirmed that she did not have a disability I must conclude that the Complainant has not succeeded in establishing a prima facie case of discrimination on the ground of disability.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.

CA-00042497-001           Discrimination on the prohibited grounds of family status and disability

I found that the complainant had not established a prima facie case of discriminatory treatment on the family status and disability grounds contrary to the Equal Status Acts.

In these circumstances it is my decision that this complaint is not well founded.

CA-00042497-001           Discrimination on the prohibited grounds of family status and disability

I found that the complainant had not established a prima facie case of discriminatory treatment on the family status and disability grounds contrary to the Equal Status Acts.

In these circumstances it is my decision that this complaint is not well founded.

Family status, disability