Alastair Purdy & Co Solicitors successfully represented T. O` Higgins Homevalue Hardware Ltd (“Respondent”) before the Work Relations Commission (‘’WRC’’) in a discrimination claim brought by an individual wishing to enter the shop who refused to wear a face mask (“Complainant”).
The incident occurred during the COVID-19 pandemic on the 2nd of February 2021. Upon entering the Respondent’s retail store, the Complainant was asked by security to wear a face mask. The Complainant refused to do so on the basis that he was exempt due to medical conditions. The Respondent refused to assist the Complainant unless he provided proof of exemption. The Complainant left the premises and later returned with a copy of S.I. 296 of Government Regulation 2020 referencing the part that mandates the wearing of facemasks on certain premises, and in particular section 5 that deals with reasonable excuses/exemptions. Once again, the Respondent refused to grant an exemption without proof.
The Complainant brought a discrimination claim against the Respondent under Section 21 of the Equal Status Act 2000 (” 2000 Act”) which provides ‘’that a person who claims that prohibited conduct has been directed against him or her may seek redress by referring the case to the Director.’’ The Complainant submitted that the incident contravened the 2000 Act as he had been subject to direct discrimination on grounds of disability and indirect discrimination through the Respondent’s failure to provide reasonable accommodation.
The Respondent made reference to a recent decision that was on all fours with this case. In Anthony Lyttle v Buywise Discount Stores Costcutter North Strand, the complainant was unsuccessful in arguing that he had been discriminated against on grounds of disability when he was denied access to a service following his refusal to wear a face covering. Akin to the present case, the complainant refused to offer proof of exemption.
Firstly, the Adjudicator was not willing to engage in an interpretation of and potential breach of S.I. 296 as the WRC is not the correct platform for such. Secondly, in regard to the argument of a failure to provide reasonable accommodation, the Adjudicator explained that 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 2000 Act. The Complainant did not submit medical evidence to support his claim. In addition, the Adjudicator clarified that this did not amount to an invasion of privacy but rather it is imperative in order to allow the Adjudicator to make a decision on the discrimination claim. Finally, while the Complainant pursued this complaint before the WRC, in the first instance prior to the hearing he neglected to bring this attention to the Respondent. The Adjudicator explained that where 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. The Complainant’s claim was not upheld.
Key Takeaways for Employers
The pandemic has forced retailers to restructure their businesses in order to keep both employees and customers safe from the COVID-19 virus. Without proof of exemption from complying with safety guidelines or proof of impairment, an employer can continue to require compliance from both employees and customers, which includes the wearing of face masks.
Further link to other successful defence in this area: https://www.workplacerelations.ie/en/cases/2022/april/adj-00032055.html