Just three people have won discrimination claims over Covid-19 face mask rules to date – a success rate of just over 5 per cent. Among the claims rejected was one brought by a man who entered a West Cork supermarket while maskless and wearing a yellow Star of David.
The Workplace Relations Commission has rejected 53 out of 56 complaints taken under the Equal Status Act 2000 and the Employment Equality Act on disability grounds by individuals claiming they were refused goods, services or reasonable accommodation for being unable to wear a face covering.
Many more such claims are understood to be either awaiting decision or a hearing date following a 298 per cent surge in complaints on disability grounds by customers and members of the public against businesses and other service providers in 2021.
Compensation orders totalling €4,500 were made against a healthcare clinic, a supermarket and a hotel this year after proprietors either accepted discrimination, failed to produce witnesses or evidence to contradict complainant evidence, or failed to appear to offer a defence.
The earliest award for €500 was made against the Gresham Hotel on O’Connell Street in Dublin, which was ordered to pay James Oliver Tattan the sum after he was left upset and embarrassed by the insistence of a porter that he put on a face mask in December 2020.
The WRC accepted his evidence that the porter refused to look at a medical letter confirming Mr Tattan’s disability in the absence of contradictory evidence from the hotel – which told the commission the porter had since gone back to his home country and that the CCTV footage had been overwritten.
The largest award, €3,000, was made against an unidentified medical clinic which accepted discriminating against an autistic patient who said he would be “distressed” if he had to wear a mask in December 2020.
Despite getting a prior assurance that there would be no issue, the tribunal heard he was turned away when he arrived for a scan because of his “inability to wear a face covering”.
The tribunal was told there had been a “miscommunication between staff” on the mask policy because of the “enormous pressure” at the time – with the adjudicating officer writing that the clinic had “in effect, admitted its failure to reasonably accommodate the complainant”.
A third award of €1,000 was made against a supermarket, which did not enter a defence.
One other mask-related claim is understood to have been settled for an undisclosed sum before hearing.
The claims that did get ahead to full hearing were usually pursued by litigants representing themselves.
“I’d have been careful about taking on cases. Some of them were genuine bloody cranks,” said one legal source, adding that some of the prospective claimants who approached him had been “motivated somewhat by ideology”.
He said he “felt genuine sympathy” for others.
“Looking at the success rate, they seem to have an uphill battle,” he said of complainants. “If you were going to lawyer up, €3,000 in compensation isn’t going to get you far,” he said of the highest award secured.
Another legal source said a difficulty for proprietors of retail and hospitality businesses in defending the claims was to arrange for workers who had moved on from their employment in the high-turnover sectors to come and give evidence.
Most claims were heard over a year after the events giving rise to the alleged discrimination.
Former presidential candidate Ben Gilroy lost his case against Decathlon Sports Ireland Ltd following a hearing some 21 months on from what he called a “heated” exchange over the mask regulations at its store in Ballymun, Dublin 12th in August 2020.
He had told the shop – which denied discrimination – that he was “exempt” from the regulations, claiming he was left “physically impaired” and short of breath following a heart attack in 2015.
An adjudicating officer found Mr Gilroy had presented “no medical evidence to [Decathlon] at the material time” and “was not discriminated against”.
Mr Gilroy said in a statement that the WRC was “a complete waste of time when it comes to being discriminated against for medical issues”.
In the course of hearing cases over the last year the WRC heard evidence of often tense exchanges between employees and individuals, with interactions frequently recorded by complainants on their mobile phones.
At many of the hearings, shop and hospitality workers repeatedly expressed fears about the prospect of contracting Covid-19 at work and passing it on to their families.
One shop worker told the tribunal that a cashier had refused to serve a complainant because he was not wearing a mask and because she was afraid for her vulnerable father, in a claim taken against a Belmullet hardware store over an incident in spring 2021 – just eight weeks after the Co Mayo district had the highest Covid-19 infection rate in the country.
“He said he would not wear a mask and they were all brainwashed. The other employee replied: ‘Well if that’s the case, we’re all brainwashed, and if we’re all brainwashed, I am too, and I won’t serve you either,” the witness said.
Another claimant whom the tribunal heard went to a West Cork supermarket in January 2021 wearing a yellow Star of David while taping the incident, admitted at hearing that he “regretted” his comments to a manager who asked him to wear a mask.
“That’s why I’ve got 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 reveal the medical basis for their alleged disability status – either during interactions at businesses or at their WRC hearings – and had them rejected on the basis they were unable to demonstrate that they were in a protected category.
One claimant called it “absolutely disgraceful” that the WRC asked him to submit medical evidence of his claimed disability to a public hearing.
“If you tell me your medical history, I’ll tell you mine,” the complainant told a barrister representing retailer Heatons. “Did you have gonorrhoea in your life? Do you see where I’m going?” the complainant asked.
In another case, the tribunal refused to accept an exemption note produced by a complainant which he said had been signed by Derry GP Dr Anne McCloskey.
“You live in Longford – is there a reason that you’re going to a GP in the North?” the adjudicating officer asked the man at a hearing in June.
“I travel all around and a lot of GPs wouldn’t give any letters around here. It doesn’t matter what excuse you had,” the complainant replied.
Noting in a decision issued in October that Dr McCloskey had been “suspended for 18 months pending an investigation into allegations of Covid-19 misinformation”, the adjudicator said that the note “went to the complainant’s credibility” and rejected his claim.
In July, the WRC’s annual report for 2021 revealed that in 572 claims referred under the Equal Status Act that year, 362 complainants cited disability as a ground for discrimination. The equivalent figure in 2020 was 91, which was at that point a record since the WRC started providing the data in its annual reports.
A source familiar with the situation said the increase in 2021 was “all mask-related” – describing it as a “mountain” of complaints.
By contrast, the comparative increase in allegations of disability-based discrimination in the workplace under the Employment Equality Act 1998 was just 11 per cent.
Six claims have so far been decided under the Employment Equality Act and 51 under the Equal Status Act.