ADJ-00031765 - Workplace Relations Commission A customer V An electrical retail shop

• Jurisdiction: Ireland
• Judgment Date: 08 August 2023
• Court: Workplace Relations Commission

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031765

	Complainant	Respondent
Anonymised Parties	A customer	An electrical retail shop

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00042366-001	08/02/2021

Date of Adjudication Hearing: 29/04/22 & 01/09/2022

Workplace Relations Commission Adjudication Officer: Patricia Owens

Procedure:

On 8 February 2021 the complainant referred a complaint to the Workplace Relations Commission pursuant to Section 21 of the Equal Status Act, 2000.

Following referral of the matter to me by the Director General, I gave the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant. The complaint was scheduled for hearing on 29 April 2022 and both parties attended that hearing and gave initial evidence. The hearing was adjourned due to the unavailability of witnesses. The hearing was reconvened on 1 September 2022. At that hearing both parties attended again and together with a number of witnesses for the respondent.

The complainant attended and was unrepresented at the first meeting. Ms LH, company secretary and Mr BH, Managing Director of the Respondent and Mr JMcC, Operations Director attended the first hearing.

At the reconvened hearing the complainant attended and was unpresented. The complainant was assisted throughout both hearings by an interpreter.

On behalf of the respondent, Ms LH, company secretary, Mr BH, Managing Director and Mr JMcC, Operations Director attended on behalf of the respondent. In addition, the respondent had three witnesses in attendance, Ms PD, receptionist, Mr. J, assistant store manager and Mr NM, former sales assistant.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24, the parties were informed in advance of those hearings that the hearing would normally be in public, testimony under oath or affirmation would be required and full cross examination of all witnesses would be provided for.

The required affirmation/oath was administered to all witnesses present and to the interpreter and the legal perils of committing perjury were explained to all parties.

The finalisation of this decision was impacted by medical issues arising from Covid 19.

Preliminary Matters:

The complainant requested that this matter be held in private in the context that he did not wish his personal medical information to be in the public domain given the sensitivity of his condition. The respondent confirmed that they had no objection to the matter being held in private. On the day in question, no member of the public sought to attend the hearing and so the matter of the publication of the decision remained to be considered by the Adjudication Officer.

The Respondent objected to consideration of video footage taken on his phone by the complainant during the incident and asked that the Adjudication Officer not take such information into account. This matter is outlined in further detail under the heading “Findings” below.

Background:

The complainant contended that he was discriminated against by the respondent on the grounds of disability and that this was in relation to accessing the respondent shop on 17 January 2021. The respondent denied the claim.

Summary of Complainant’s Case:

In his complaint form, the complainant outlined that on 17 January 2021 he attended at the respondent store and was immediately told that he must cover his face with a mask. He outlined that he replied that he could not do it because he had a health problem and that he had medical certification. He outlined that the respondent told him that he could not do the shopping without the mask and that he was calling the Gardai. He stated that there were also attempts to push him out of the store and to damage his phone. He stated that when the Garda arrived, his doctors’ certificate was checked, and he was told that everything was okay. He stated that he asked if he could continue shopping in the store, but the respondent refused him service and said that he should leave the store. He submitted that this constituted discrimination under the Equal Status Act on the grounds of disability and that he had the same rights as other people to shop at the store. The complainant provided the Workplace Relations Commission with an email outlining his position in relation to the reply from the respondent to his ES2 form. In that document he stated that the respondent had said that he had refused to give a reason as to why he couldn’t wear a mask. He stated that this was a lie, that when he entered the store and was asked to put on his mask he replied that he could not do so because he had a health problem. He stated that the manager had asked him to show him his doctors’ certificate and that he had asked that manager to introduce himself as he didn’t have an ID with name on it. He stated that the manager responded that he did not want to say his name and so he (the complainant) replied that he would not show his private documents from the doctor. He stated that he had no such obligation and that he did not have to. He stated that the manager was given clear information that he had health problems and couldn’t wear a mask and he stated that he was immediately told that he was to leave the store and not to be served. He stated that he told the manager many times that he had medical problems and that he could not cover his face and that he had a doctors’ request that he be exempt. In his ES2 form he commented in relation to the racist comment he was alleged to have made. He stated that this was not true, that the seller was aggressive and tried to push him out of the store. He stated that he then waited for the Gardai and that he kept a distance of 2m and at all times he told the seller to move away despite the fact that he didn’t want to do this. He stated that when the Garda came and checked his medical certificate, they said that everything was okay and that he did not...