Mother and daughter lose 'discrimination' case against retailer

A MOTHER and daughter who were refused permission to collect €4 order from Brown Thomas in Limerick as they were not wearing face masks have lost a discrimination case.

Elizabeth Torneria-Fuentes and her daughter, Victoria Torneria-Fuentes - who both have disabilities - entered the store in the city centre on October 5 2021 to pick up their ‘click and collect’ item.

However, the two were prevented from collecting the item as they were not wearing Covid-19 masks and did not provide security staff details of their disabilities in order to demonstrate that they were exempt from mask-wearing.

The two subsequently lodged discrimination claims on the grounds of disability under the Equal Status Act against store owner, Brown Thomas Arnotts Ltd.

Following a day of evidence at a Workplace Relations Commission (WRC) hearing in Ennis, Adjudicator, Moya de Paor found the pair’s discrimination claims were "not well founded".

Ms de Paor stated that she was satisfied that Brown Thomas Arnotts Ltd was not made aware of the nature of the mother’s and daughter’s disabilities on the date in question.

She stated that, therefore, she found that there is no evidence to support a finding that the two were treated less favourably by the retailer on the grounds of their disabilities.

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Ms de Paor also found that there is no evidence that the Brown Thomas store failed to provide the two with reasonable accommodation for such disabilities.   

The Adjudicator said she was satisfied that the two failed to establish a prima facie case of discrimination on the grounds of their disabilities.  

Ms de Paor stated that she was satisfied, based on the evidence, of the two complainants that Brown Thomas staff were not made aware of the nature of their disabilities, nor did they offer to provide proof of their medical conditions to substantiate the basis of her request for reasonable accommodation.

Ms de Paor stated that this finding is supported by the evidence of Brown Thomas security man Gary O’Sullivan who stated that on the date, the two did not advise him of why they could not wear a face mask. He added that they did not provide him with any proof to explain the basis of their exemption.

Furthermore, she stated that Brown Thomas Arnotts Ltd - represented in the case by David O’Regan BL, instructed by  Corrigan & Corrigan Solicitors - must be aware of what a person’s disability is in order to fully assess the most appropriate measures to provide reasonable accommodation. 

The Adjudicator said she accepted the evidence of Brown Thomas Health and Safety Manager, Lorraine Bedford that BT had put in place various measures to accommodate customers who were unable to wear a face mask while shopping and outlined various options.

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In evidence, former Security Officer with BT, Gary O’Sullivan told the hearing that it was very hard to speak to either woman on October 5, 2021 as both were speaking over him and were telling him about their human rights and constitutional rights to be in the store without a face mask.

Victoria Torneria Fuentes denied that she spoke over Mr O’Sullivan as alleged while Elizabeth Torneria Fuentes told the hearing that she told Mr O’Sullivan that BT Face Coverings policy “didn’t trump the law of the land” and that people with disabilities were exempt from wearing masks.

Mr O’Sullivan said that he was shown a lanyard by the two which referred to hidden disabilities and which stated “face mask exempt”.

Elizabeth  Torneria-Fuentes told the hearing that she has numerous disabilities including chronic bronchitis and is on medication for it and uses two inhalers. She stated that she can’t wear a mask and finds it difficult to breathe, which triggers her to cough.

Victoria Torneria Fuentes told the hearing that she also has numerous disabilities including chronic pain from a back injury. 

She stated that as a result of the pain she suffers from her breathing can get shallow and she finds it difficult to wear a mask. 

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During the hearing, Mr O’Regan stated that the €4 item Elizabeth Torneria Fuentes had purchased could have been delivered to her house.

Elizabeth Torneria Fuentes also confirmed that she didn’t contact BT in advice to warn them that she was coming into the store, nor did she warn any other store in advance when she went shopping.

In reply to a question from Ms de Paor, Elizabeth Torneria Fuentes confirmed that the lanyard can be purchased from the Hidden Disabilities website at the cost of €7 or €8 and that medical evidence is not required to buy one. 

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Victoria Torneria-Fuentes confirmed that they were contacted by BT’s customer service officer who advised them as they hadn’t collected their online order that it would be sent in the post which they received in November 2021.

Victoria Torneria-Fuentes stated in evidence that she didn’t tell Mr O’Sullivan what disabilities she had as she didn’t feel that a Security Officer was in a position to interpret medical data.