ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033635
Parties:
| Complainant | Respondent |
Parties | Amanda Dobson | Mullingar Specsavers Ltd Mullingar Specsavers Ltd |
Representatives | self | self |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00044426-001 | 01/06/2021 |
Date of Adjudication Hearing: 02/09/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
On the 20th of January 2021 the complainant travels from Oldcastle Meath to Mullingar to have her eyes tested, a distance of about 20 miles or 36 kilometres. Her doctor on the 9th of September 2020 had certified that the complainant was not able to tolerate a mask. The Optician in Mullingar on the day had a sign on the pavement stating, “Appointments available today”. The complainant renewed her driving licence on the 4th of February 2021. |
Preliminary Matter
The Optician queried if the ES Form had been properly served on them as required by the Act. The complainant produced evidence that the form had been posted as evidenced by a certificate of posting on the 4th of March 2021. I determine that the complaint has been properly notified to the respondent optician.
Summary of Complainant’s Case:
The complainant stated on oath that she travelled from her own village to Mullingar as there are no opticians in her village. She can’t wear a mask and has been certified by her doctor as being intolerant to wearing a mask. The Optician ( in Mullingar) had a sign advertising appointments available today. She went into the shop and was asked where was her mask? She said that matters became heated when she stated that she didn’t require a mask and she was looking for her eyes to be tested as she wished to renew her driving licence. She was being treated in a disrespectful way and to show that was so; the complainant started to record the interaction with the staff and manager of the shop. She was then asked to leave the shop and to come back after lockdown to have her eyes tested. The staff then contacted the Gardaí who subsequently stopped her on the way home and asked why she had travelled into the town? She stated that she wanted to have her eyes tested so that she could renew her driving licence. The complainant alleges discrimination on the ground of disability, and she was treated less favourably than others with no disability or a different disability. Their refusal to see her that day interfered with the renewal of her licence. The complainant recorded the incident as she wanted to have proof to show how badly she had been treated. The shop recorded her and therefore she also had a right to record her interactions with staff. The complainant states that she was humiliated in front of other customers and in turn harassed by the Gardaí and stopped by them on her way home. |
Summary of Respondent’s Case:
The store manager stated that this was not a case of refusing to facilitate or accommodate the complainant to have an eye test on the day. The shop has a comprehensive standard operating procedure in place to facilitate patients who could not wear a mask and had done so. The complainant was asked why she was not wearing a mask based on public health guidelines that in enclosed spaces masks should be worn. It must be remembered that in January 2021 the Pandemic was most virulent and COVID infection numbers had grown exponentially, it would have been irresponsible not to ask her why she was not wearing a mask. However that request about the mask, immediately led to the complainant recording the interaction between staff and her and also threatening to post the recording on social media. It was this action that led the manager to ask the complainant to leave the store, as other patients/customers were in the shop and the exchanges between the complainant and staff had escalated and felt threatening, particularly with the threat that the video would be posted on social media. |
Findings and Conclusions:
S.I. No. 296 of 2020 states: Requirement to wear face covering 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. And regulation 4 (4) states: (4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements. The complainant has claimed that she has a reasonable excuse for not wearing a mask as detailed in the regulations. However the manager as a responsible person as defined in the regulations is required to take reasonable steps to engage with persons entering the shop to inform them of the requirements of paragraph (1) and to promote compliance with those requirements. Section 14 of the Equal Status Act 2000 as amended states: 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, The manager was fulfilling a legal obligation when she engaged with the complainant to inform her of the requirement to wear a mask in the shop. The complainant relied upon a reasonable excuse to explain why she was not wearing a mask. The Optician operated a standard operating procedure to safely test patients or new clients who had no mask. The exchange that led to the complainant being requested to leave the shop arose from her recording the manager and concerns that she would post it on social media. The Labour Court in In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, made the following comments in relation to the “but for” test, which relates to an allegation of victimisation arising from making a protected act, in this case a grievance concerning discrimination and the detriment being denied an appointment that day and the Gardaí also being called: “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.” The complainant has not met the prima facie test concerning victimisation. The manager had a legal duty to engage with her when she entered the store and to understand why she was not wearing a mask. The reason she was asked to leave the shop related to her recording the manager who had concerns that she would post that recording on social media. I determine that she was not victimised by the respondent employer. The complainant has not made out a prima facie case that she was discriminated against because of her disability. The Optician in fact was accommodating patients and new clients who had a reasonable excuse not to wear a mask with appointments. The manager was obligated to engage with the complainant. The operative cause of the complainant being asked to leave the shop related to the manager’s concerns relating to her right to privacy and possible posting of the recording on social media. The complainant was not victimised or discriminated against.
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Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I determine that the complainant was not discriminated against or victimised. |
Dated: 28th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Face Mask-Victimisation |