ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032638
T O'Higgins Homevalue Hardware
Alastair Purdy Alastair Purdy & Co. Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 07/02/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
In accordance withSection 25 of the Equal Status Act, 2000,following 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. The Complainant gave his evidence under affirmation by way of a verbal submission setting out the facts. A submission was presented by the Respondent. Following comments by each party after the initial submissions I gave a clear indication of the interpretation of the applicable law which would form the basis of my decision and advised that I saw no reason to continue the hearing by way of further witness evidence and closed the hearing. That reasoning is set out in the findings section of this decision.
This case is concerned with a claim that the Complainant was discriminated against by the Respondent as a person who provides a retail service to the public when the Respondent refused him a retail service because he was not wearing a mask while in his shop on 2 February 2021. The complaint under the Equal Status Act is a failure to provide a reasonable accommodation.
Notification of a complaint concerning discrimination and customer service and an intention to follow with proceedings to the Workplace Relations Commission was sent by email on 2 February 2020. A reply to that email was sent by the Respondent on 3 February 2021.
Summary of Complainant’s Case:
The following is a summary of the Complainants statement of case set out on the complaint form supported by the evidence provided at the hearing. On February 2nd, 2020 the Complainant entered the Respondents premise in Galway. He was immediately stopped by a security guard who told him to put on a face mask as otherwise he could not enter the store. The Complainant asked for a manager saying that he was exempt from wearing a mask. He was told that if he wanted an exemption he must provide a letter from his doctor. He disagreed saying that such a letter was not required under law nor was it necessary for him to prove his disability. The Complainant left the premises and returned later with a copy of S.I. 296 of 2020 referencing that part that mandates the wearing of masks in certain premises -section 5 that deals with reasonable excuses/exemptions. The manager said he could not see any physical or mental disabilities and that he still required a medical certificate. The Complainant said that a disability may not always be visible -that wearing a mask may cause severe distress and severe distress is a disability as well as an exemption under the statutory instrument. There was no attempt to provide him with a reasonable accommodation. His explanations were not listened to and disregarded. He had tried to resolve the matter through email correspondence before using official channels (Equal Status Act Complaint). This is a complaint of direct discrimination on grounds of disability and indirect discrimination through a failure to provide a reasonable accommodation.
At the hearing the Complainant described the effects of wearing a mask on him as making it difficult to breath; getting dizzy sometimes leading to headaches and an accelerated heart rate-sever stress. He was not required to give all of this private medical information to the Respondent to obtain an exemption as provided for in the statutory instrument.
When asked if he had medical evidence to support the complaint, the Complainant replied no, he did not have such medical evidence.
Summary of Respondent’s Case:
The submission on behalf of the Respondent described the background Covid situation in Ireland at the time of these events. Also described were the steps taken by the Respondent to enforce the regulations including employing additional security personnel. A sign posted by the Respondent at the premises stated: Please observe social distancing, wear a mask and sanitize your hands on entry to the shop. Your temperature may be checked.’
On 2nd February 2021 when the Complainant attended at the shop in Shantalla Road Galway, he attempted to enter the shop while not wearing a face covering. He was approached by a member of staff who told him that a face mask must be worn. When asked for evidence of this exemption none was forthcoming. The employee said that he could assist him by obtaining goods and serving him outside. The Duty Manager also spoke to the Complainant and re-iterated that no person could enter the premises without a face covering as per Government guidance. The Complainant said that he was exempt due to a medical condition without providing any evidence of such a condition. Having left the premises, the Complainant returned later with a copy of the Government Regulation. The manager repeated that he could not grant an exemption without proof of an exemption.
There was a facility whereby a customer could contact the store and arrange to have an item ready for collection. The Complainant did not avail of this service.
Reference was made to a recent adjudication officer decision ADJ-00032493 where the adjudication officer in concluding that no discrimination had occurred in a case which it was submitted was on a all fours with the current case-did so on the basis that, as no medical evidence was presented to support the claim of a disability, the Complainant had not provided prima facie evidence to support the complaint. As the Complainant in this case was unable to provide medical evidence to support his claim of a disability, the same decision should apply to the current case as was made in the earlier case.
Findings and Conclusions:
As advised to the parties before concluding the hearing; it appears that two distinct issues have been conflated within this complaint.
The first is the interpretation of and potential breach of S.I. 296-the interpretation of which is a matter not for an adjudication officer in the WRC but for another place and legislation. Nothing in this decision should be construed as an interpretation of the Statutory Instrument.
The second issue is a complaint of a failure to provide a reasonable accommodation under the Equal Status Act. As advised to the parties, once such a complaint is made, then whatever about on the day in question, once a complainant is alleging discrimination on grounds of a disability, then where the claim to have a disability is disputed, medical evidence must be provided to support the claim under the Equal Status Act. The purpose of providing such evidence is not an invasion of privacy but to allow the Adjudication Officer to determine if a disability is established for the purposes of the Equal Status Act. And to allow the Respondent to have that evidence before them.
[This should not be read as meaning that in all cases and in all circumstances a Complainant must provide medical evidence to for example avail of certain services or facilities where a disability is claimed-but once a complaint is made under the Equal Status Act that medical evidence must be available if the existence of a disability or whether that a disability qualifies within the meaning of the legislation is contested.]
The Complainant has confirmed that he has no medical evidence to support his claims of disability. He has therefore no evidence to support a claim of discrimination based on a disability or that he should have been provided with a reasonable accommodation based on that disability. This is a summary of what was advised to the parties at the hearing.
On reviewing the material and evidence again post the hearing, I want to deal with the complaint of a failure to provide a reasonable accommodation. I am inclined to the view that the term reasonable accommodation was not in play February 2nd, 2021 in the shop -rather that the emphasis was on the statutory instrument and the claim that he was entitled to an exemption on grounds of stress versus the Respondents view that he was required to produce medical evidence to obtain an exemption. -Effectively what occurred that day was a dispute about S.I.296 which provides for a reasonable excuse. This conclusion is supported by the fact that in his email to the Respondent on February 3rd-the Complainant did refer to discrimination but made no reference to seeking a reasonable accommodation. In general terms, if a person is seeking a reasonable accommodation for the purposes of a claim of discrimination they would be expected to notify the other party and to provide that party with an opportunity to consider the specific request and to respond. I am satisfied that on February 2nd, 2021 the Complainant sought a facility under the Statutory Instrument and not the Equal Status Act -again different legislation with different tests. Based on this conclusion, the Complainant has submitted complaint of indirect discrimination in respect of a claim for a reasonable accommodation under the Equal Status Act-which claim he did not make on the Respondent.
In summary, the Complainant has failed to provide medical evidence to support a complaint of discrimination where that claim of a disability is disputed and for this reason alone his complaint of direct and /or indirect discrimination is not well founded. Additionally, the Complainant has made a complaint of indirect discrimination based on the refusal of a reasonable accommodation under the Equal Status Act 2000 which he did not make at the time of the events or subsequently.
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.
CA-00043205-Equal Status Act 2000-2021.
The complaints of direct and indirect discrimination brought by Slawomir Tompalski against
T O’ Higgins & Co Limited are not well founded.
Dated: 24th February 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Equal Status Act-Discrimination based on disability-Requirement to wear a mask in a retail setting-Covid Regulations