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PROTECTING YOUR RIGHT TO PRIVACY: FACE MASK EXEMPTIONS
Read on facebook – 4 January 2021
Following from our post of 3rd January on the WRC Face Mask discrimination case, we have received a number of queries whereby people have been asked in shops to provide medical evidence of face mask exemptions.
We have posted on this issue on 13th October 2021.
The law on face coverings does NOT provide a shop with the right to require a customer to provide evidence of their medical exemption. Any processing of sensitive health data is prohibited under Article 9(2)(a) to (j) of the GDPR 2018 unless one of the exceptions applies.
Indeed, even if a customer CONSENTS to showing a medical exemption this can still constitute a breach of the GDPR by the shop as any consent must be ‘freely given’. Consent is not freely given if a data subject feels they have no real choice or are compelled.
We refer to our previous post and the importance of a pre-action letter if a person suffers disability discrimination as a result of the face mask requirement. A person has then 2 months from the date of the incident to serve form ES1 if the matter is not resolved and 6 months from the date of incident to issue a WRC claim.
It is noteworthy that the duty of a ‘responsible person’ at a shop under the law extends to and is LIMITED TO promoting compliance or engaging with a customer about wearing a face mask. A customer should be empowered with the knowledge of what constitutes a ‘reasonable excuse’ under Regulation 5 (a) to (g) of SI 296 of 2020.
There is no authority under the law on face coverings (SI 296 of 2020) for a shop to ask a customer to disclose sensitive medical or other personal data relating to their face mask exemption.
We have drafted a submission that people can send to a retailer if they are asked to provide evidence of a medical exemption. If there is no response within 14 days, a complaint can be lodged with the Data Protection Commissioner.
We are of the opinion that it is very important to challenge any such requirements by shops to prevent the normalisation of retail owners and workers being under the impression that they are ‘entitled’ to see a customer’s medical exemption or other personal data.
It is fundamental that we protect our right to privacy as it is the most important civil and human right that is under threat in this epoch. It is also essential that collectively we do our utmost to uphold a disabled person’s right to dignity and respect.
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For the Urgent Attention of The Data Protection Officer
I write further to my attendance at your premises on (insert date) when I was asked by (a member of staff/ the Manager etc) (delete as applicable) to provide medical proof of my exemption from wearing a face covering.
It is my submission that there is no legislative basis for you to require an individual to provide sensitive health data under SI No. 296 of 2020 – Health Act 1947 (Section 31 A-Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 (‘SI 296 of 2020’) as extended. The onus is therefore on you as indoor operator and data controller to demonstrate a legal basis under Article 6 and 9 of the General Data Protection Regulation (GDPR), 2018 for processing my health data pertaining to my medical exemption.
I refer to Regulation 4(4) of SI 296 of 2020 that states:
‘A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements’.
Under Regulation 4(1) a person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.
A ‘responsible person’ is defined as the occupier, the manager or any other person for that time being in charge of the relevant premises.
It is therefore clear that the obligation of a responsible person under SI 296 of 2020 does not extend beyond engaging with a customer and promoting compliance with the requirement to wear a face covering.
The legislation, therefore, does not provide you with the lawful authority to require an individual to provide sensitive health data pertaining to their exemption from wearing a face covering.
As data controller you must therefore demonstrate a legal basis for processing such sensitive health data under Article 6 and 9(2) of the GDPR.
A data controller is also under a duty to conduct a Data Protection Impact Assessment under Article 35(3) of the GDPR.‘
Processing’ is defined as ‘any disclosure by transmission, dissemination or otherwise make available’ under the GDPR. Under Article 9(2) processing of data concerning health data is prohibited unless the exceptions listed at subparagraph (a) to (j) apply.
It is noteworthy that a retailer cannot rely on the exception of consent under subparagraph (a) even if a customer agrees to provide medical evidence of exemption. I refer to Page 7 of the European Data Protection Board ‘Guidelines 05/2020 on consent under Regulation 2016/679 Version 1.1 Adopted 4th May 2020 that consent must be freely given:
‘…..if the data subject has no real choice, feels compelled to consent or will ensure negative consequences if they do not consent, then consent will not be valid consent’.
I trust that you will agree that it is quite apparent that you do not have the legal authority to require a person to disclose sensitive health data pertaining to their exemption from the requirement to wear a face covering. It therefore follows that it is fundamental that you undertake an immediate review of any shop policy requiring customers to provide evidence of a face mask exemption to prevent any further contraventions of the GDPR.
No doubt you will also agree that it is of significant importance that your shop does not engage in any actions that contravene European and national privacy law.
I look forward to hearing from you within 14 days of the date of this correspondence. Please note that if you do not respond within this stipulated timescale I intend to lodge a complaint with the Data Protection Commission on the grounds that you are in breach of Article 6 and 9 of the GDPR.
LEGAL ANALYSIS OF WORKPLACE RELATIONS COMMISSION ADJUDICATION ON FACE MASK DISCRIMINATION CLAIM
It has been reported in the Irish Independent online yesterday that ‘a customer loses face mask discrimination claim after being refused entry without a mask’. We have analysed this WRC decision so that people on the ground are empowered with the legal knowledge of what constitutes face mask discrimination on the grounds of disability under the Equal Status Acts.
Note that a person has the right to appeal a WRC Adjudication under the Equal Status Acts to the Circuit Court.
Anthony Lyttle (‘The Complainant’) v Buy Wise Discount Stores Costcutter North Strand (‘The Respondent’)
SUMMARY OF CASE
The Complainant submitted that he went to the respondent premises to purchase milk on the 5th of January 2021. That upon entering the store, a member of staff asked him to put on a face mask and that he subsequently advised the staff member that he was exempt. He advised the staff member that he would wait outside to speak to the manager. When the manager came out, he told the complainant that he would either need to wear a mask or that he would need to see to see the Complainants exemption in order to let him into to the shop without a mask. The Complainant stated that he was exempt due to his reasonable excuse and that he was not required to provide evidence of this. The Manager of the shop confirmed to the complainant that wearing a face covering was shop policy and that he could take the matter up with the owner.
The Complainant states that he did return to the shop at a later stage to discuss the matter with the owner and this is the basis of his second complaint (CA-00043060-002). The Complainant submitted that he had a reasonable excuse which amounts to a disability within section 2 of the Equal Status Acts and that he was treated less favourably than another person in a comparable situation on the disability ground. He also submitted that the respondent did not do all that is reasonable to accommodate the needs of a person with a disability.
The Respondent submits that on 5th of January 2021 the Complainant came to the respondent premises and asked why his wife had not been served in the shop earlier that day when she had refused to wear a face covering
The Respondent submitted that they advised the Complainant that the shop was enforcing rules in relation to face coverings in order to protect the staff and customers from Covid. The Complainant then asked if he wanted to buy bread and milk if he would be served without a face mask. The Respondent submitted that they replied directing the complainant to the sign in the window stating that customers are required to wear a face covering which can be a mask, or Face shield/ visors for the people with medical condition as HSE advised at the time. The Respondent stated that the Complainant then left the shop stating that he was going to his solicitor.
The Adjudicator made the following findings:
1) That the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
(2) Section 2 of the Equal Status Act, 2000 defines a mental “disability”, inter alia, as meaning “a condition, disease, or illness which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.
(3) The Complainant advised the hearing that he is a person with a disability. The Complainant advised the hearing that he suffered from claustrophobia triggered by covering his face. He stated that covering his face causes him anxiety.
(4) The Complainant when questioned advised the hearing that he DID NOT have a medical diagnosis or any medical report or documentation to support his claim. The complainant stated that he had not spoken to a medical practitioner about this issue in about 20 years but that it had recently been triggered by the requirement to wear a face covering. He stated that he had suffered an incident 20 years previously but that he had not been to a physician in relation to the matter and could not produce any evidence of any diagnosis.
(5) The Respondent advised the hearing that the Complainant had not advised them of any disability. The complainant in this case has submitted a claim to the WRC on grounds of disability claiming that he was discriminated against on the ground of disability.
(6) The Complainant provided no evidence/documentation in relation to his disability. The Complainant also failed to provide any evidence in support of his assertion that he was treated less favourably by the respondent on grounds of a disability or that the respondent failed to provide him with reasonable accommodation for such disability.
(7) The Complainant failed to establish a prima facia case of discrimination on grounds of disability. The complainant was not discriminated against by the respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability.
The Adjudicator found that the Complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability.
WHAT DOES THIS DECISION MEAN?
(1) This case highlights that in order to bring a successful claim for face mask discrimination on the grounds of disability a person must demonstrate that he/she SUFFERS FROM A DISABILITY UNDER SECTION 2 OF THE EQUAL STATUS ACTS.
2) This means that a person must demonstrate that they suffer a physical and/or mental disability.
(3) The Complainant in this case produced no medical evidence of his disability to the Workplace Relations Commission from his doctor or other medical professional. Independently verified medical evidence of a disability is therefore important in order to succeed in a disability discrimination claim.
(4) The Respondent submitted that the Complainant did not inform them that he suffered from a disability. THIS IS WHY IT IS IMPORTANT TO SEND A PRE-ACTION LETTER OF NOTIFICATION TO THE COMPLAINANT AFTER ANY INCIDENT OF FACE MASK DISCRIMINATION THAT A PERSON SUFFERS FROM A DISABILITY. An ES1 Form should be sent within 2 months of incident and a claim must be issued to the WRC within 6 months of the incident if the matter is not resolved. Also people should familiarise themselves with the grounds for a reasonable excuse under Regulation 5 of SI 296 of 2020 as extended.
(5) It is noteworthy that there is a distinction between a ‘reasonable excuse’ for not wearing a face mask on the grounds of a physical or mental disability and severe distress under Paragraph 5 (1) of SI 296 of 2020 as extended. Under Paragraph 5(1) it states:
(a) the person cannot put on, wear or remove a face covering -(i) because of any physical or mental illness, impairment or disability, or(ii) without severe distress,
A person who has a reasonable excuse for not wearing a face covering due to severe distress under SI 296 of 2020 as extended must prove that his/her condition amounts to a disability under Section 2 of the Equal Status Acts to succeed in a face mask discrimination claim. In other words, the fact that a person has a reasonable excuse under SI 296 of 2020 as extended to not wear a face covering on the grounds of severe distress will not amount to disability discrimination if refused service UNLESS THAT PERSON CAN PROVE THEY HAVE A CONDITION, DISEASE OR ILLNESS WHICH AFFECTS A PERSON’S THOUGHT PROCESS, PERSEPTION OF REALITY, EMOTIONS OR JUDGEMENT OR WHICH RESULTS IN DISTURBED BEHAVIOUR.
This highlights the importance of evidence from a medical professional to substantiate any claim of disability discrimination to the WRC.
(6) It is noteworthy that under SI 296 of 2020 as extended a retailer has NO LEGAL BASIS under Article 6 and 9 of the General Data Protection Regulation, 2018 (‘GDPR’) to request sight of a person’s sensitive medical data relating to his/her exemption from the requirement to wear a face mask. The law on face coverings DOES NOT provide a retailer with a legal right to request sight of a person’s face mask exemption under Article 9(2)(a) to (j). If a person suffers from a disability and suffers face mask discrimination he/she should send a pre-action letter to the retailer stating that they suffer from a disability under Section 2 of the Equal Status Acts. If the matter is not resolved a person must submit an ES1 Form within 2 months and issue a claim to the WRC within 6 months. A person is NOT obliged to disclose the details and nature of a mental or physical disability to a retailer orally at a shop. We are of the opinion that it is fundamental in this epoch that people do all in their power to protect their right to privacy which is under threat in this epoch. The right to privacy is seismic as it underpins all other civil and human rights.
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