Discrimination claim over non-wearing of mask in Galway shop rejected by WRC

A discrimination claim by a man who refused to put on a face mask in a Galway hardware shop during a Covid-19 surge last year has been rejected by the Workplace Relations Commission (WRC) after he failed to provide any evidence he was medically exempt.

In her ruling, adjudicating officer Janet Hughes said that continuing with the hearing “would be a waste of time for all concerned”.

Bernard Carberry had claimed there was a burden of proof on the firm to prove face coverings stop the spread of the virus and demanded the retailer produce “no less than peer-reviewed studies” to prove it. But his complaint under the Equal Status Act against T Ó hUiginn & a Comlucht Teo (T O’Higgins & Co Ltd) of Shantalla Road, Galway, was rejected by the WRC.

Mr Carberry told the commission that in January 2021, he had to fix a lavatory at his family home and went to Higgins & Co to buy the parts – having been served at the shop some days previously without a mask without issue, he said.

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Mask

He said the difficulty arose when the store’s Covid officer spoke to the member of staff serving him to remind him of “what he had said before about serving people with no mask”, he said. Mr Carberry said he told the Covid officer that he was exempt from the mask rules, but that the worker “would not accept this”.

A manager asked for proof of his exemption, Mr Carberry said, which he said he did not have to provide.

He said other staff then “got involved” and he was “subjected to abuse” and a “threat to call the guards” over the course of 10 minutes before he left.

Mr Carberry, who represented himself at the hearing, said it was “embarrassing and humiliating” as it happened in front of others and said his “health and safety [was] at risk if he was forced to wear a mask”.

“The respondent wishes to advance a case suggesting that a failure to wear a face covering could cause harm to others,” Mr Carberry wrote in a submission to the WRC. “To advance this case, I believe he must prove that face coverings offer protection from Covid-19 and in this regard no less than peer-reviewed studies will be accepted. I believe the burden of proof rests with the respondent,” he added.

He told an adjudication hearing on March 24th that he was “not comfortable disclosing his private medical history to anyone but a medical practitioner” and that he would not share it with the respondent company, its legal representatives or the WRC.

Mr Carberry said doing so would place him “at the risk of public ridicule and humiliation”.

Information

The hardware store’s position was that it was operating as an essential retailer during the pandemic and had spoken to staff to reassure them it would “strictly enforce the public health guidelines”.

In its submission to the WRC, the retailer said there were travel restrictions in place on the day in question and that Mr Carberry would have had to travel more than 5km from his home to get to its premises; passing five other hardware stores on the way.

It was submitted that Mr Carberry “failed to enter through the front door” and went in the deliveries entrance, refusing to put on a mask when he was asked to by a security worker. While he was at the trade counter speaking to the store Covid officer, other customers “began to demand that the complainant wear a face mask”, at which point the officer walked away in a bid to defuse the situation.

A manager then asked for confirmation of Mr Carberry’s claimed medical exemption, which he refused to give, the company’s solicitor said.

Mr Carberry was then asked by the staff member to stop recording the incident on his phone, which he refused to do, and was then asked to leave the premises, the company said. He then “said he would be in contact with the Workplace Relations Commission”.

The company argued Mr Carberry would have to prove he had a disability in order to take a complaint under the Equal Status Act.

“At no juncture did the complainant explain what condition renders him medically unable to wear a face covering,” the company’s solicitor said, arguing that if the firm did not have the right to seek some details of the “reasonable excuse” Mr Carberry was claiming to avail of, it would “make a nonsense of the statutory instrument”.

Scenario

“This could result in the entire population not complying with wearing a face mask and merely stating that they were exempt. This is not a plausible scenario,” the solicitor added.

In her decision, the adjudicating officer wrote that the hardware retailer was “certainly not required to justify public health guidelines”.

“A statement ‘I have an exemption’ is a statement of fact suggesting that it has been approved by someone and the respondent merely sought evidence of that statement of fact”, Ms Hughes wrote, adding that Mr Carberry had refused again to provide evidence for this at the hearing, even when she suggested anonymising the decision.

“The response was no and no. He stated that he was not in a position to provide medical evidence and he was not prepared to do so,” she wrote.

“There was no point in continuing as there was no possibility that his claim of discrimination on grounds of a disability could succeed,” Ms Hughes wrote.

“To continue the hearing would be a waste of time for all concerned,” she added, and ruled Mr Carberry’s complaint was not well founded.