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Covid-19 – Discrimination and Disability for Refusal to wear a face covering in shop

The recent Workplace Relations Commission case of Anthony  Lyttle v Buy Wise Discount Stores Costcutter North Strand dated 16th December 2021 should serve as a timely reminder to those who feel discriminated against for being refused entry to a shop or other service provider.

The complainant in this case argued that he had been discriminated against on the grounds of disability when he was refused service in the respondent’s shop. He submitted that upon entering the store, a member of staff asked him to put on a face mask and that he subsequently advised the staff member that he was exempt and rather than bring his disability to the attention of the other customers he advised the staff member that he would wait outside to speak to the manager.   

When the manager came out, he told the complainant that he would either need to wear a mask or that he would need to see to see the complainants exemption in order to let him into to the shop without a mask.   The complainant submitted that he stated that he was exempt due to his reasonable excuse and that he was not required to provide evidence of this.

The complainant submitted that the manager of the shop confirmed to the complainant  that wearing a face covering  was shop policy and that he could take the matter up with the owner.  The complainant subsequently returned to speak to the owner but did not advise of any specific disability.

The complainant submited that he had a reasonable excuse which amounted to a disability within section 2 of the Equal status acts 2000 (as amended) and that he was treated less favourably than another person in a comparable situation on the disability ground. He also submitted that the respondent did not do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities.

The Workplace Relations Commission found that the complainant had not been discriminated against on the grounds of disability. The Adjudicator noted:

“In addition to being satisfied that the complainant suffers from a disability, I must also be satisfied that the respondent was aware of such disability and that the respondent treated the complainant less favourably on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability.   

The respondent advised the hearing that the complainant had not advised them of any disability.  The complainant when questioned as to whether he had advised the respondent of the existence of a disability stated that he did not believe that he had to provide any reason other than to state that he had a reasonable excuse for not wearing a mask.”

Employment Law Learning

A complainant or person bringing a complaint of discrimination on the grounds of disability must be able to show that they in fact have a “disability” and provide evidence/documentation in relation to this. They must also be able to show that the respondent knew of or was aware of the “disability”. Once the respondent or an employer is on notice of a “disability”, they then have a legal obligation to provide what is known as “reasonable accommodation” in relation to that disability. As the complainant in this case could not provide any evidence of his disability or that the shop was aware of this, he was unsuccessful in his case.

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