ADJ-00032391 - Workplace Relations Commission Marcin Nowak v Moriarty’s Food Markets Ltd T/A Moriarty’s Supervalu Skerries

Judgment Date04 January 2023
Hearing Date14 June 2022
Docket NumberADJ-00032391
Date04 January 2023
CourtWorkplace Relations Commission
RespondentMoriarty’s Food Markets Ltd T/A Moriarty’s Supervalu Skerries
Procedure:

On 23rd February 2021, the complainant referred complaints pursuant to the Employment Equality Act and the Equal Status Act. The complaints were scheduled for adjudication on the 14th June 2022. The complainant attended the hearing, and he was represented by Barry Crushell, solicitor. The respondent was represented by Peter Flood, IBEC and three witnesses attended on its behalf: Serena Nally HR Manager, Luke Moriarty Managing Director and James Moriarty, Operations Director.

In accordance with section 79 of the Employment Equality Acts, 1998 - 2021 and section 25 of the Equal Status Act, 2000– 2018following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant was certified as not being able to wear a face covering because of claustrophobia. He asserts that he was discriminated against on grounds of disability in not being allowed attend work and also not being able to attend the respondent supermarket as a customer. The respondent denies the complaints of discrimination.

Summary of Complainant’s Case:

In submissions to the hearing, the complainant outlined that he has a disability and was not provided reasonable accommodation in respect of that disability. He suffered discrimination as both an employee and as a service user. The respondent failed to provide reasonable accommodation and failed to provide a service when he attended the store with his three-year old child.

The complainant outlined that there were people who had refused to wear a mask during the restrictions, and this has led to prejudice against people who could not wear a mask. The complainant outlined that he suffered from claustrophobia, and this is a psychological illness. This manifested itself when he was in confined spaces and included the wearing of a mask. He outlined that the respondent had implemented the standard protocols, and this included a self-declaration of a disability. The complainant had made a declaration that he was not able to wear a mask.

The complainant submitted that the respondent’s primary concern was not his safety or that of his colleagues, but they had treated this as a public relations issue. The respondent had informed the complainant that colleagues and customers had raised his not wearing a mask. He was asked to produce a medical certificate. He presented the certificate given to him by his doctor, who was based in Poland. The respondent then referred him to occupational health who also certified that he could not wear a mask.

The respondent, however, informed the complainant that he could not work if he could not wear a mask. He was also refused the service when he called to the supermarket to buy nappies, even though the respondent was aware of his medical condition.

The complainant said that this was not a visible disability. The respondent had initially said that a medical cert would do, but he was not facilitated in returning to work or to avail of a service. It was submitted that the respondent stance was profit driven. There were alternative roles that the complainant could have done. The complainant had been willing to be flexible and there were roles he could work without wearing a mask.

It was submitted that the respondent was focussed on public relations. It was submitted that there was an obvious distaste where an individual was not provided with the opportunity to work or with a service on any other ground than disability. It should cause the same distaste where the complainant suffered the same discrimination on grounds of his disability in seeking to work and to access a service. The complainant had been medically certified and had taken all the steps required of him. He was not allowed work and was also later discriminated as a customer.

The complainant outlined that he last worked in the middle of November 2020 and was paid up to mid December 2020. He outlined that the respondent was aware of his disability and because of the correspondence exchanged between them, there was no need for additional notification under the Equal Status Act. He referred to the correspondence that post-dated the refusal of service.

Complainant evidence

After being sworn, the complainant said that he commenced employment with the respondent in April 2018. He settled deliveries in the morning and then packed shelves. He started work at 7 or 8 in the morning. He had returned to work in 2020 and tried to wear a mask but could not wear one properly. The HSE guidelines provided for an exemption. He felt stressed wearing a mask and would panic and shake. He said that no colleagues complained to him about not wearing the mask properly nor did any customers. He was shocked when the respondent said that he needed to wear a mask.

The complainant outlined that he signed the self-declaration form and did not want to give any details to the respondent for confidentiality reasons. He was asked to get a medical certificate and was told that he would get an accommodation when he provided a cert. The respondent had said that they would only accept a cert.

The complainant said that he went to his GP in Skerries, who informed him that he should see a specialist. He arranged to see a specialist in Poland and did so online. He did not make an application to the Disability Tribunal in Poland. He would have had to wait two months to see an Irish specialist.

The complainant said that he attended work the next day and was told that he had to leave if he was not going to wear a mask. He was given two options and he chose to take two weeks of annual leave. He was paid for a few more weeks after that. He attended the occupational health assessment on the 7th December 2020. The doctor certified that the complainant could not wear a face mask, but he never received a copy of the report. The respondent emailed him to say that the complainant could not return to work and was informed that there was no reasonable accommodation. He said that he could have worked anywhere in the supermarket, for example on the butcher or deli counters, where staff worked behind a screen. About 30 people worked in the supermarket and there was also a store man role. He could have also done deliveries to the homes of customers.

In respect of the 26th November 2020, the complainant said that he attended the respondent premises mainly to get nappies. He was in the supermarket when the duty manager approached him to say that he needed to wear a mask. The complainant replied that he had a certificate and that he had given this to management. The duty manager said that it was the same rules for employees and customers. The duty manager told the complainant to leave the supermarket and he put down his basket and left. His son asked the complainant why they had to leave the supermarket.

The complainant said that he had not wanted to go back to the supermarket because they had discriminated against him. The complainant was placed on sick leave. The respondent had not mentioned any alternative roles and they stated that they had no accommodation to offer him.

In cross-examination, the complainant accepted that the respondent was obliged to protect colleagues and customers. He had informed the respondent that the HSE guidance provided for an exemption, and he was exempt. He had been able to shop elsewhere without wearing a mask. Colleagues often did various roles and there were always new butcher and deli staff. The complainant had told the respondent that he could do any role in the meeting of the 27th November, but they did not find any accommodation. He had been waiting for the respondent to come back with examples.

Closing by the complainant

In closing, it was submitted that all along the complainant had been informed that if he produced a cert, he could attend work. However, when he produced the cert, the story changed. The focus was not on providing a safe place of work and as soon as it became about the bottom line, the respondent excluded the complainant. There had been no change in the public health guidance, and this was that people could be exempt. The respondent had not provided evidence to justify this dramatic change. The HSE had said that people who were exempt should be facilitated. This was a balancing exercise, but the complainant could have been facilitated in some role. The respondent had held that the complainant could not work. The incident of the 26th November 2020 took place four working days after he had supplied the cert and the complainant should not have been excluded. The respondent had taken a hard line and disregarded the exemptions provided for by the HSE. The respondent did not consider any alternative reasonable accommodation.

Summary of Respondent’s Case:
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