Complainant

Respondent

Parties

Mark J.  Savage

Swords Specsavers Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045344-001

25/07/2021

The Complainant alleges that he was discriminated against on grounds of “Religion” when he was asked to leave the Respondent store having refused to wear a face mask. The Respondent is contesting the allegation.

On 26th January 2021 the Complainant states that he was discriminated against on the religious ground. He is an Evangelical Christian. He did not believe in the pandemic therefore he states that to wear a mask to protect him or others from it would be a lie. That lie would cause him extreme distress. The Complainant must at all times “be a witness to the truth”. If he was to wear a mask it would be untruthful. On that basis he argues that he was exempt on the “reasonable grounds”. In that regards he is referring to mental distress. On 26th January 2021 he went into the Respondent’s store. He was asked to wear a face mask. It was explained to him that it was store policy. He said that he did not want to wear one. He tried to explain that the law provided him with an exemption. He went to take out the statutory exemption to show the lady, but she got very upset. He licked his fingers to turn the page and she got even more upset saying he was spreading a dangerous disease. He wasn’t given the opportunity to show her the law he had taken with him. She then called store security. A young lady security officer came down to the store.  She asked him to come outside with her. He tried to explain to her that he was exempt. The security guard said he would have to leave that it was private property, and he was being asked to leave so he should leave. He tried to explain that it was not, it was a public place. When the Complainant refused to leave, someone then called the gardai. It was then that he decided to leave.

Mr Savage said under cross examination that he did not have to show the proof of exemption. It wasn’t required.

The next morning, he called Specsavers. He spoke to Ms. Buckley. He asked her if she had an opportunity to look over the legislations and the HSE guidelines. She said that he was rude the day before and that he had used bad language. He did not. She lied about that.  

He was not allowed to show her the statutory instrument. That was indirect discrimination. He tried to explain that he is an Evangelical Christian. He holds the believe that there was no pandemic and therefore there was no need to wear a mask.  

The Complainant accepted he did return to Specsavers on two separate occasions after the incident even though the incident on the 26 January 2021 made him feel “victimised and humiliated”.

Matthew Richards took the affirmation and gave his evidence as follows:

Mr. Richards is the manager of the Respondent’s Swords outlet. When Mr. Richards heard of the incident on 26th January 2021, he called Ms. Buckley to have a conversation about it. The Respondent is an essential service provider. During the pandemic, the Respondent was working in line with NPHET and HSE guidelines. They had an obligation to keep their staff and their service users as safe as possible. He wasn’t directly involved with Mr. Savage on 26th January. He only heard about it after the event.

On the 23rd April he wrote to the Complainant  stating:

 Dear Mr Savage,

 By way of introduction, I am the retail partner and managing director of Specsavers Swords. Thank you for your patience while I have looked into the concerns you received via letter on 29 March 2021. We strive to give all our customers a professional and courteous service and I am sorry if on this occasion this was not your experience. We are proud to have remained open during the COVID-19 pandemic offering urgent and emergency appointments as well as routine and general care. We have adapted our in-store processes and procedures to ensure we are fully compliant with government rules, regulations, advice and law to protect our customers and colleagues which includes, inviting every person entering our store to wear a face covering (but understanding that if someone opts not to wear one or is unable to, that their choice is respected), sanitising, and appointment management to control numbers of people in a store to maintain social distancing. We have details on our website with what customers can expect on their visit and how we are keeping customers and colleagues safe: https://www.specsavers.ie/covid19-care/in-store We request that all customers pre-book their appointments via phone or online and aim to call and triage customers ahead of their appointment to understand their needs as well as make reasonable adjustments where required. These adjustments can include:

Requesting customers wear a face covering for at least part of their visit but giving the option to remove it for periods if they are impacted by it · Offering the use of a PPE visor for the duration of the visit, if that is preferable to a face covering · Using a remote consultation, if possible, to minimise time spent in the practice · Scheduling or rescheduling an appointment with a clinician with no underlying health conditions, that is fully vaccinated or an increased vulnerability to COVID-19. I’d like to apologise if you were given then impression that you were ‘barred’ from Specsavers Swords – this is not the case, and I would like to continue to support you with your eye care needs in line with current procedures and with relevant reasonable adjustments as detailed above. If you would like to book an appointment this can be done by calling the store directly on 01 894 5000. However, if you would prefer to have your eye care managed by another provider, I can arrange to have your records sent to you. Secure Management Solutions Ltd, Secure Management Solutions Mobile Ltd and Pavilions Administrations Ltd are not part of Specsavers Opticians Swords or Specsavers Hearcare Swords and we cannot comment on their behalf, you will need to speak to these companies directly. Please be assured that the concerns you raised have been taken seriously and relevant training and re-education has been taken with my team as we continue to aim to offer the best possible care and service to our customers and community. Yours sincerely, Matthew Richards Retail Director Specsavers Swords Opticians.

In January 2021, the Respondent could only allow a limited number of people into the store at one time. People were asked to line up outside where they were triaged before they could come in. Staff had to meet the needs of all of the customers. Some customers were allowed to come into the store without a mask if they meet the requirements. That was established outside before they were allowed to come in. Mr. Savage was asked to wear a mask. He said “ No”. He was then asked about his exemption. That was outside of the store when he was being triaged. He became aggressive with Ms. Buckley. Because of that, she went back into the store. Mr. Savage followed her. Due to is level of aggression another member of staff called security. Due to further escalation the gardai were called.

Lila Buckley, took the Oath and gave her evidence as follows:

On the day in question, 21st January 2021, Ms Buckley went out to Ms Savage who was waiting outside the store. He wanted to come in to book an appointment. She told him that he would have to wear a mask if he wanted to come into the store. He said “No”. He then got aggressive. Due to his aggression, she walked back into the store to get away from him. He followed her into the store. She stood behind the covid desk. He approached the desk. He pulled out some documents from his bag. He licked his fingers to turn the pages. Ms. Buckley was extremely nervous because she was living with her mother who was an “at risk” person. She told him that if he was exempt, he had to show his exemption or documentation proving his exemption. He remained aggressive so she asked him to leave. One member of staff stood behind Ms Buckley as he feared for her safety. Another member called security. He went outside when security came. Soon after the gardai were then called. He left then.

He called the next day. He asked if Ms. Buckley had looked at the statutory documentation he had brought in. She said she had not and reminded him that security had told him he was no longer welcome in the centre.

The Complainant alleges that he was discriminated against on grounds of Religion stating when he was refused a service by the Respondent in January 2021.

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,

S3 (2) As between any two persons, the discriminatory grounds ( and the description of those grounds for the purpose of the Act) are:

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not ( the “ religion” ground.

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited.  In Southern Healthboard v Mitchell the Labour Court stated:

“  The first requirement is that the Complainant must establish facts from which it may

    be presumed that the principle of equal treatment has not been applied to them. This

    indicates that a Complainant must prove, on the balance of probabilities, the primary

    facts on which they rely in seeking to raise a presumption of unlawful discrimination.

    It is only if those primary factors establish to the satisfaction of the Court, and they are        

   regarded by the Court as being of sufficient significance to raise a presumption of

    discrimination, that the onus shifts to the Respondent to prove that there is no

    infringement of the principle of equal treatment.”

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there are no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant, who is an Evangelical Christian, states that the Respondent discriminated against him on the religious ground when he attended at the Respondent’s premises to book an appointment and he was refused a service because he refused to wear a mask. He gave evidence that when inside the shop unit, he attempted to give the Ms. Buckley a copy of the statutory instrument proving his exemption. She requested that he leave the premises and called security. Ms. Buckley who gave evidence on behalf of the Respondent stated that when Mr. Savage was outside in the triage area she approached him and told him that if he wanted to come into the store, he would have to wear a mask. He said “no”. He became very aggressive. She was afraid so she walked back into the store. He followed her and came into the store after her. He remained aggressive. He then started to take documents out of his bag and licked his fingers to turn the pages. Ms. Buckley became extremely nervous because she was living with her mother who was an “ at risk” person. He was so aggressive another member of staff called security. They arrived and asked him to step outside. Things were escalated outside and the gardai were called.

The exemption upon which Mr. Savage relies states:

S.I No 296/2020

4 (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering:

5. Without prejudice to the generality of what constitutes reasonable excuse for the purpose 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.

The Complainant seeks to rely on the reasonable excuse of “without severe distress”. He states that due to his belief that the pandemic did not exist he felt it would be a lie to wear a mask. That lie, because of his religion, would cause him severe distress pursuant to S5 (ii) above.

A Complainant cannot succeed with a discrimination claim on the grounds of religion if the claim is based on the assertion that their religious beliefs prohibit them from wearing a mask because they do not believe in the pandemic. For a successful claim, the Complainant must demonstrate a clear, sincere, and substantial connection between their religious beliefs and the alleged discriminatory action. While freedom of religion protects sincerely held beliefs, the courts typically require these beliefs to be part of a recognized or coherent system of faith rather than a personal or subjective interpretation. Disbelieving in the pandemic is not inherently a religious belief but rather a personal opinion or worldview. Additionally, public health measures, such as mask mandates, are generally upheld as neutral and universally applied rules designed to protect public safety, not as discriminatory practices targeting religious beliefs. Consequently, the claim lacks the necessary legal and factual foundation to succeed.

On that basis I find that the complaint is not well founded and accordingly fails.

The complaint fails.