Complainant

Respondent

Parties

Mark J.  Savage

Secure Management Solutions Limited

Representatives

Eamonn Gibney HR Dept

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045346-001

25/07/2021

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 “bear 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 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. It was private property, and he was being asked to leave it. 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 then 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 no need to wear a mask.

Eamon Gibney – took the affirmation and gave his evidence as follows:

The complaint is ill conceived and false. All of the issues occurred before the Respondent in this case arrived. He was asked to leave the Specsaves store. He refused to leave. At that point he became a trespasser. He could have complied with that request. Instead, he opted to roar and shout.  When security arrived, he was asked to leave again.  He refused to leave. He was loud and aggressive. That is why the gardai were called. The Respondent knew nothing about his religion or his disability. All the Respondent knew was that he was refusing to leave the Specsaver store and that is why security were there. All of the complaints he has outlined in his complaint form happened before the Respondent arrived at the scene. The only reason he was asked to leave was because of his anti-social behaviour.  

The Respondent states that in bringing a claim before the WRC that is an abuse of process.

The Complainant alleges that he was discriminated against on grounds of Religion stating when he was requested to leave the shopping centre he was at by a servant or agent of 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 was requested to leave the premises by a third party against whom he has a separate complaint filed. 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 a different Respondent ( ADJ 34363) 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. 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.

Furthermore, the within Respondent came to the scene after the Complainant had been asked to leave. The only thing they were aware of was that there was a customer who was acting anti – socially and who was refusing to leave. I am satisfied that they were not aware of his religious beliefs, his beliefs about the pandemic or about anything that had been said prior to their arrival.

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

The complaint fails.