Complainant

Respondent

Parties

Martin Kelly

Castlebridge Centra Ltd Flanagans Centra

Representatives

Fintan Dunne Fintan Dunne

Margaret Connolly Cogent Taxation Group Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045666-001

14/08/2021

The complainant submits that he was discriminated against by the respondent on the grounds of disability.

The complainant submitted that he sent the ES1 form to the respondent on 23/06/2021 regarding what he alleged was discrimination on the grounds of disability that occurred on 19/06/2021 and that he did not receive a response to the ES1.  The complainant provided a copy of a letter from his doctor, dated 13/8/2020 which stated that the complainant is “for medical reasons unable to wear a mask”.

The complainant submitted that he has attended the shop on previous occasions without a mask but that on 19/6/2021 he was told by one of the shop workers, Mr A, to put a mask on.  The complainant told Mr A that he has an exemption and that Mr A said that he would not be served without a mask.

The evidence of the complainant was that he had previously a number of strokes, asthma and heart surgery and needed to give his evidence slowly.  He said he goes to the supermarket regularly.  He said that a few days earlier when he was in there and a girl asked for his mask and he said he was exempt and went to show the letter and the girl said that was fine.  He said on the day in question there were 5 or 6 others in the queue and that Mr A said that he had to wear a mask.  The complainant said he was exempt, and Mr A said that he had to wear a mask.  The complainant told Mr A to get the manager and was told by Mr A that he could not be served and was told that he would not be served. 

The complainant said that he has difficulties expressing himself at times owing to his disability and that Mr A was not interested in the letter and when the complainant told him he had a letter Mr A said he had to wear a mask and that he could not serve him without a mask.  The complainant said that most people do not read the letter and are happy once the complainant produces the letter but that Mr A would not engage with him and it was very upsetting to be refused by a store that he uses regularly.  He said that his disability is his strokes and his asthma and that he finds it hard to speak as a result of his disability which is worse with a mask on. 

Under cross examination the complainant said that he took the medical letter out of his pocket and that Mr A did not look at it.  He confirmed that his daughter went into the store after the incident and that the complainant stayed in the car.

Mr A was the worker who served the complainant at the store and he was not present to give evidence.  The respondent read out a statement from Mr A which they said was signed by Mr A.  This statement stated that the complainant was told that all customers must wear face covering unless shown a medical exemption and that the complainant got very aggressive and the complainant told Mr A that he did not have to wear a mask.  The respondent provided a copy of their covid policy which set out that:

“1. To protect each other, it is mandatory to wear a face covering while shopping in our stores.* 2. Sanitise your hands when entering. 3. At busy times we will need to limit the number of people entering the store. 4. Use contactless or card payments where possible – Contactless threshold has been raised to €50. 5. Buy what you need, we are re-stocking regularly. 6. If you need any help just ask *Please let us know if you are exempt from wearing a mask and we will support you in getting your shopping.”

The respondent said that covid was difficult for their staff and customers at the store and that they have many customers with medical issues and empathised with the complainant.  The respondent submitted that their policy was robust and no medical evidence was given on the day and that the complainant was aggressive on the day and that there is no place for that behaviour.

Mr Lillis’ witness for the respondent was in the shop on the day that the incident occurred and his evidence was that it was a long queue and that he heard Mr A ask the complainant to put on a mask and that the complainant became very aggressive and that Mr Lillis was shocked by this.  Mr Lillis said that Mr A was very cool and discharged his duties well and did not show any upset.  Mr Lillis said that a week later, he complemented the owner of the shop on the behaviour of Mr A during this incident.  Under cross examination Mr Lillis says he regularly visits the store and that he would know the manager and would be on friendly terms with him but this did not prejudice him on what happened.  He said that he did not see the complainant’s face during the incident but that the complainant sounded aggressive, and he did not hear anything said about exemptions.

Ms Connolly witness for the respondent gave evidence that the store policy is that persons must wear masks except where persons have exemptions and they make the store aware of those exemptions.  Under cross examination Ms Connolly said that there have been no other incidents regarding mask wearing.

The complainant gave evidence that he was discriminated against on the grounds of disability.  He submitted that he is medically exempt from wearing a mask owing to strokes that affected his speech and he also has asthma and that he has a medical document that confirms his exemption which he provided at the hearing.  The respondent submits that the complainant did not show any exemption, was aggressive, that he was told to wear a mask and did not.

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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Under Section 38A of the Acts which applies to all complaints of discrimination it requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.

It was apparent that when the complainant gave his evidence he talked slowly, and it was evident that he had difficulties with verbal communication but I note he was able to communicate when given time.  I am satisfied that the complainant is a person with a disability within the meaning of the Acts and this was not disputed by the respondent.  

I note that Mr A was not in attendance at the hearing to give direct evidence and that a statement was provided from him but it was not possible to examine his evidence.  The complainant’s evidence was that he carries his exemption with him and has been asked on occasion to provide same and that he does not have any objection to providing the exemption.  I note Mr Lillis said that Mr A was patient with the complainant but that the complainant appeared aggressive.  Having heard the complainant’s credible direct evidence it would appear that the complainant was frustrated as he believed Mr A was not listening to him and not taking the time to listen to him.  Mr Lillis confirmed that he did not hear the full conversation and did not know if the complainant said anything about exemption, and did not see the full interaction between the complainant and Mr A. 

Having heard all the evidence and noting the credible evidence of the complainant I am satisfied that the complainant made attempts to alert the respondent to his exemption but because of his disability and what appears to have been Mr A putting him under pressure, he may not have been given an opportunity to communicate his disability and exemption to the respondent.  Mr A was not in attendance to give evidence, but I note the evidence of Mr Lillis that it appeared a heated interaction.

I have noted that in Adj-00034219 Shivaun Mooney v Rialto Medical Centre that the complainant had also a medical exemption but that it was considered reasonable in the circumstances for the respondent to mitigate the risk posed to the elderly and that in that case the complainant attended with her mother who was seeking a service and the complainant was not refused a service.  However, in this instant case it was the complainant who was refused service and I am satisfied that he could not receive a service without a mask for which he has a medical exemption.

I find that the complainant has established a prima facie case of discrimination on the grounds of disability and that the burden of proof shifts to the respondent.  I do not find that the respondent engaged with the complainant in a reasonable manner to ascertain the circumstances that arose such that complainant was not wearing a mask.  The respondent has not, therefore, rebutted the inference of discrimination.  While the complainant’s disability might not have been obvious in the first instance, it would have been apparent after a very brief interaction. 

In those circumstances I find that the respondent has not met the burden of proof required and that the respondent engaged in conduct prohibited by the Act by discriminating against the complainant on the grounds of the complainant’s disability. In all of the aforementioned circumstances I order the Respondent to pay the Complainant €2,000 in compensation for the effects of the prohibited conduct.

I find that the complainant has established a prima facie case of discrimination and that the respondent has not met the burden of proof required.  I find that the respondent engaged in conduct prohibited by the Act by discriminating against the complainant on the grounds of the complainant’s disability. In all of the aforementioned circumstances I order the Respondent to pay the Complainant €2,000 in compensation for the effects of the prohibited conduct.

Mask, disability, equal status