WRC rejects discrimination claim from man who refused to wear face mask in-store

Man who refused to wear mask claimed there was a burden of proof on the retailer to prove face coverings stop the spread of the Covid virus

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26 April 2022 | 0

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The Workplace Relations Commission (WRC) has rejected a discrimination claim brought by a man who refused to wear a face mask in a Galway hardware shop during a Covid-19 surge last year, following his failure to provide any evidence that he was medically exempt.

Adjudicating officer Janet Hughes said continuing the hearing “would be a waste of time for all concerned”.

The Irish Times reports Bernard Carberry’s 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.

He had claimed there was a burden of proof on the business to prove face coverings stop the spread of the virus and demanded the retailer produce “no less than peer-reviewed studies” to prove it.

In January 2021, Bernard Carberry 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”. Carberry said he was exempt from the mask rules, but that the staff member “would not accept this”.

When asked for proof of his exemption, Carberry replied that he did not have to provide it.

He claimed other staff then “got involved” and he was “subjected to abuse” and a “threat to call the guards” during a 10 minute period before he left.

Representing himself, Carberry described the incident as “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”.

He told an adjudication hearing on 24 March 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 – on the grounds that doing so could place him “at the risk of public ridicule and humiliation”.

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 Bernard 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. The retailer added that a staff member asked Carberry to stop recording the incident on his phone. After refusing to do so, he was then asked to leave the premises.

The company argued 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” he was claiming to avail of, it would “make a nonsense of the statutory instrument”.

 

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