Only three people have so far won discrimination claims because of the Covid-19 face mask rules – a success rate of just over 5 percent.
The Workplace Relations Commission has rejected 53 of 56 complaints made under the Equal Status Act 2000 and the Employment Equality Act on the grounds of disability by individuals alleging that they were denied goods, services or reasonable accommodations because they did not have a face covering. could wear.
Many more such claims are believed to be pending a decision or hearing following a 298 percent increase in disability complaints by customers and members of the public against businesses and other service providers by 2021.
Compensation orders totaling €4,500 have been issued this year against a health clinic, a supermarket and a hotel after owners either accepted discrimination, failed to provide witnesses or evidence to contradict the complainant’s evidence, or failed to appear to defend themselves.
The earliest award of €500 was made against the Gresham Hotel on Dublin’s O’Connell Street, which was ordered to pay James Oliver Tattan the sum after he was upset and embarrassed by a doorman’s insistence that he wear a face mask set up December 2020.
The WRC accepted his evidence that the doorman refused to see a medical letter confirming Mr Tattan’s disability, in the absence of contradictory evidence from the hotel – telling the commission that the doorman had since returned to his home country and that the camera footage was removed. overwritten.
The biggest award, €3,000, was awarded to an unidentified medical clinic that accepted discrimination against an autistic patient who said he would be “upset” if he had to wear a mask in December 2020.
Despite prior assurances that there would be no problem, the tribunal heard he was turned away when he arrived for a scan due to his “inability to wear a face covering”.
The tribunal was told there had been a “miscommunication between staff” about the mask policy due to the “huge pressure” at the time – with the bailiff writing that the clinic had “basically admitted it had failed to accommodate the complainant reasonably”.
A third prize of € 1,000 was awarded to a supermarket, which did not put up a defence.
Another mask-related claim was said to have been settled prior to the hearing for an undisclosed amount.
The claims that did make it to a full hearing were mostly pursued by lay people.
“I would have been careful about taking cases. Some of them were real bloodthirsty bastards,” said a legal source, adding that some of the potential plaintiffs who approached him were “somewhat motivated by ideology.”
He said he felt “genuine sympathy” for others.
“Looking at the success rate, they seem to be having an uphill battle,” he said of complainants. “If you were to hire a lawyer, € 3,000 in compensation will not get you very far,” he said of the highest award received.
Another legal source said a problem for retail and hospitality business owners in defending the claims was getting workers who had left their jobs in the high-turnover industries to come forward and tell their side of the story.
Most of the claims were filed more than a year after the events giving rise to the alleged discrimination.
Political activist Ben Gilroy lost his case against Decathlon Sports Ireland Ltd after a hearing some 21 months after what he called a “heated” discussion over mask regulations at his store in Ballymun, Dublin on August 12, 2020.
He had told the store – which denied discrimination – that he was “exempt” from the rules, claiming he was “physically disabled” and short of breath after suffering a heart attack in 2015.
A bailiff found that Mr Gilroy had ‘not provided any medical evidence’ [Decathlon] at the time of the facts” and “was not discriminated against”.
Mr Gilroy said in a statement that the WRC was “a complete waste of time when it comes to discrimination due to medical issues”.
During the hearing, the WRC heard evidence of often tense exchanges between employees and claimants, the interactions often being recorded by complainants on their mobile phones.
During hearings, retail and hospitality workers repeatedly expressed fears about the prospect of contracting Covid-19 at work and passing it on to their families.
A shop assistant told the tribunal that a cashier had refused to serve a complainant because he was not wearing a mask and because she feared for her vulnerable father, in a claim against a Belmullet hardware store over an incident in the spring of 2021.
This was just eight weeks after the Co Mayo district had the highest number of Covid-19 infections in the country.
“He said he wouldn’t wear a mask and they were all brainwashed. The other employee replied, “Well, if that’s the case, we’ve all been brainwashed, and if we’ve all been brainwashed, so am I and I won’t serve you either,” the witness added.
Another claimant whom the tribunal heard went to a supermarket in West Cork wearing a yellow Star of David while recording the incident in January 2021, admitted on hearing that he “regretted” his comments to a manager who asked him to mask himself.
“That’s why I have this yellow star on, because it’s fascism,” the complainant was heard to say on the recording, which he submitted to the WRC.
Complainants often refused to disclose the medical basis for their alleged disability status – either during interactions at companies or during their WRC hearings – and were turned down because they failed to demonstrate that they fell into a protected category.
One claimant called it “absolutely disgraceful” that the WRC insisted that he disclose medical evidence of his alleged disability.
“If you tell me your medical history, I’ll tell you mine,” the prosecutor told a lawyer representing shopkeeper Heatons.
“Have you had gonorrhea in your life? Do you see where I’m going?” asked the complainant.
The bailiff in the case recorded that the respondent “justifiably” objected to her accessing his medical records without opening them and rejected the claim.
In another case, the tribunal refused to accept a waiver drafted by a complainant, which he claimed was signed by Derry GP Dr Anne McCloskey.
“You live in Longford – is there a reason you go to a GP up north?” the bailiff asked the man during a hearing in June.
“I travel all over the place and many GPs wouldn’t give letters here. It doesn’t matter what excuse you had,” the complainant replied.
In a decision issued in October, noting that Dr McCloskey had been “suspended for 18 months pending an investigation into allegations of misinformation about Covid-19”, the arbitrator said the note was “to the credibility of the complainant went” and rejected his claim.
In July, the WRC’s annual report for 2021 revealed that in 572 claims filed that year under the Equal Status Act, 362 complainants cited disability as a ground for discrimination. The equivalent figure in 2020 was 91, which was a record at the time since the WRC started providing the data in its annual reports.
A source familiar with the situation said the 2021 increase was “all mask related” – describing it as a “mountain” of complaints.
In contrast, the relative increase in allegations of discrimination based on disability in the workplace under the Employment Equality Act 1998 was only 11 percent.
To date, six claims have been processed under the Employment Equality Act and 51 under the Equal Status Act.