WRC rejects Ben Gilroy discrimination claim over face mask

Political activist Ben Gilroy’s discrimination claim over being asked to put on a face mask at a Dublin shop two years ago has been rejected by the Workplace Relations Commission (WRC).

Mr Gilroy had claimed a family day out in August 2020 was “completely ruined” after he said he was approached by the manager of the Decathlon store in Ballymun, Dublin 12, and asked to put on a face mask or leave.

Decathlon’s lawyers argued Mr Gilroy sought to “aggravate the situation” and used “aggressive and abusive language” while taking a video of the incident on his phone — and that he did not state any grounds of disability entitling him not to wear a mask.

Mr Gilroy’s complaint of discrimination on the grounds of disability against Decathlon Sports Ireland Limited was rejected by the WRC in a decision published on Wednesday morning.

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The former European Parliament candidate said in evidence to the tribunal that he was left “physically impaired” and short of breath following a heart attack in 2015 and could not wear a face mask for “any extended period”.

He said that on the day in question, August 19th, 2020, he went into the shop with his wife and three children and was approached by a security guard and told that he “had to put on a face mask”.

“I politely informed him that I was exempt from wearing a face covering pursuant to the very law he was implementing. He asked me what my medical condition was and I told him that I was not going to give him any personal data in relation to my private medical information and that there was no requirement for me to do so,” Mr Gilroy told the tribunal.

He said he was subsequently approached by a “young” employee who Mr Gilroy said “claimed to be the manager”.

Mr Gilroy said the worker offered him a mask to wear and told him he would have to leave if he didn’t wear one.

He told the tribunal that he again stated that he was exempt from the regulations but refused to show a medical certificate — and that as a crowd had gathered and the exchange had become “heated” he was “very embarrassed”.

Mr Gilroy added the manager later returned to him and said there was no shop policy requiring him to wear a face covering and told him he was “free to continue”.

Andrew Whelan BL, who appeared for Decathlon on the instructions of Kerrie Dunne of Collins Crowley Solicitors, argued that by Mr Gilroy’s own account he had been let in and permitted to stay on the premises despite not wearing a face mask.

The company’s position was that Mr Gilroy “was aggressive and used abusive language to its staff” and would not stop videoing them on his phone.

“At each stage, rather than explain the grounds of disability entitling him not to wear a mask, it was the complainant who sought to aggravate the situation,” Mr Whelan submitted.

Counsel added that the requests and enquiries made by Decathlon’s staff were “at all times entirely lawful” and that Mr Gilroy’s complaint seemed to “stem from a dissatisfaction with the law mandating face masks”.

“No medical evidence was provided to the respondent at the material time and therefore the respondent was not on notice of any disability; rather the complainant made an unsubstantiated assertion that he was exempt,” wrote adjudicating officer Valerie Murtagh in her decision.

She wrote that Mr Gilroy “was not discriminated against” in the circumstances.

Commenting on the outcome of the case this morning, Mr Gilroy said he would not be pursuing an appeal of the matter to the Circuit Court.

“No, it’s a complete waste of time when it comes to being discriminated against for medical issues,” Mr Gilroy said. He added that he “shouldn’t have gone [to the WRC] in the first place” but should have taken the matter to the High Court.