If you have suffered discrimination in accessing goods and/or services arising from an inability to wear a Face Covering, you may submit a complaint to the Workplace Relations Commission using the guide set out below.

Step 1

You must write to the person you are complaining about within two months of the last incident of discrimination and tell them that you intend to make a complaint under the Equal Status Acts. To do this you should use the ES1 form that has been prepared by the WRC.

To assist you in completing this form, we have pre-completed some sections such as that: a) you have been discriminated against on the basis of a disability; and b) the premises in question has failed to provide you with a reasonable accommodation as required under the Equal Status Acts arising from your disability. We have also noted the relevant laws and exemptions that exist. You can find the Complete Refusal of Service form at this link and the No Mask No Entry Signs form at this link. Please read this form carefully and ensure you include any further information required before delivering it to the business in question.

With regard to the completion of the ES1 form, you should note (in particular) the following points:

1. The time limit of two months to notify the shop or business of the discrimination is strictly followed by the WRC. A case recently came before the WRC where the claimant was one day late stating that she had recently suffered a bereavement and had not fully understood when the two-month time limit commenced. The WRC held that ignorance is no defence to the law and in finding that the time limit would not be extended by even one day, dismissed the claim;
2. You must ensure you include the correct respondent otherwise your case will be dismissed. An example would be if your complaint is against a Supervalu store, the respondent could be Musgrave Operating Partners Limited t/a Supervalu or if the store is not owned by Musgraves, it could be something like Tracey O’Mahony Limited trading as Supervalu. You cannot simply include Supervalu as the respondent, you must ensure you include the correct legal name for the entity you wish to pursue. If you are unsure you should contact the store or business in question to seek the correct details from them or carry out a search using the Companies Registration Office website; and
3. At the same time as submitting the ES1 form to the store, you must also send a form called ES2, noting that the ES2 form is to be completed by the respondent. You can find the ES2 form at this link: https://www.workplacerelations.ie/en/what_you_should_know/equal-status-and-employment-equality/equal-status/

Step 2

The respondent has one month inside which to respond to the ES1 form, using the ES2 form.

In circumstances where the respondent does not respond to the ES1 form inside one month or where a response is received but you are not satisfied with the response, you may refer your complaint to the WRC.

Step 3

You have six months from the time you suffered the discrimination to refer your complaint to the WRC, noting that you cannot refer a complaint to the WRC without first going through steps 1 and 2 just noted, otherwise the WRC will simply dismiss your complaint.

When referring your complaint to the WRC you must use their electronic complaint form. You may find the electronic complaint form at this link: https://www.workplacerelations.ie/en/e-complaint_form/

Please be advised that many people would appear to have issues with completing this interactive form, so much so that there is a guide on the WRC website which explains how to resolve IT issues. The WRC website also states that this form is not compatible for use with the majority of mobile or tablet devices.

Additional Comments on WRC Complaint Process:

1. The WRC may suggest that the complaint is dealt with through mediation, however, both parties must agree to this. If both parties do not agree to mediation or in circumstances where mediation is not successful, then the complaint will be investigated and decided upon by an adjudicator officer and this will most likely include a hearing;
2. It appears to be taking approximately six months for a complaint to be brought to a hearing at the WRC;
3. In circumstances where a hearing takes place, the respondent (i.e. the store or business) will most likely be represented by law firm, therefore, if you can have representation or a friend familiar with the law present on the day of the hearing, this would be advisable;
4. You should review section 4 of the Equal Status Acts prior to submitting your complaint. This section 4 deals with discrimination on the grounds of disability.
   With regard to this section 4, I wish in particular to bring to your attention subsection 4 of section 4 which provides “ Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”
   It is quite likely that the respondent will raise this section as a defence by stating that you not wearing a face covering has the potential to cause harm to other persons. If this position is put to you at the hearing, along with any other forms of defence that you may wish to raise, I would suggest that you also reply by stating:
   
   

   – in circumstances where the respondent wishes to advance a case suggesting that a failure to wear a face covering could cause harm to others, he must first prove that face coverings offer protection from Covid-19 and in this regard no less than peer reviewed studies should be accepted. I would further state that the burden of proof rests with the respondent to prove the effectiveness of face coverings, failing which how can he advance a position that your failing to wear a face covering could cause harm;
   
   

   – I would suggest that you bring with you to the hearing a copy of the Danish Face Covering study (Danmask- 19 Trial) noting that this study was conducted in the Spring of 2020 with over 6,000 participants and unlike other studies looking at masks, the Danish study was a randomised controlled trial – making it the highest quality scientific evidence. The study concluded that there was no statistically significant difference between those who wore masks and those who did not when it came to being infected with Covid-19; and
   
   

   – in circumstances where it is accepted that your not wearing a face covering could cause harm to others, advise that refusing you service is far in excess of “to the extent reasonably necessary to prevent such harm” noting also that no reasonable accommodation was offered to permit your access to the goods and services in question.

5. You may use the WRC complaints procedure both in respect of a refusal of service but also where a store displays a sign that reads “no mask no entry” as this is likely to amount to a refusal of service also;
6. If you are unhappy with the ruling made in the WRC, you have 42 days from the date of the WRC’s decision to appeal this ruling to the Circuit Court and thereafter you may appeal the Circuit Court ruling to the High Court (but only on a point of law);
7. In general, if either you or the respondent are represented by lawyers at the WRC, you pay your own costs regardless of whether you win or lose. This is a great advantage in submitting a complaint through the WRC as opposed to through the courts;
8. The WRC can award you compensation of up to €15,000 if they accept that you have, in fact, been the victim of discrimination; and
9. Any ruling made by the WRC, if not complied with, can be enforced through the District Court.

I would urge you to review the guidance on the WRC website in relation to submitting a complaint through the WRC.