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The Workplace Relations Commission

Customer fails in facemask discrimination case against €1 million lotto shop

When asked by the shop owner whether or not he would wear a mask in the shop, Paul Kinsella refused.

A SHOP CUSTOMER who refused to wear a face mask during a Covid-19 Level 5 lockdown has lost a discrimination case against a Wexford newsagent that recently sold a €1 million lotto ticket.

In the case, Workplace Relations Commission (WRC) Adjudicator, Niamh O’Carroll has dismissed the discrimination claim brought on the grounds of disability by Paul Kinsella against Delaney’s shop on Rafter Street, Enniscorthy, Co Wexford.

Earlier this year, the shop was celebrating after it sold a ticket to a customer who scooped the top prize of €1 million in a Saturday night Lotto Plus 1 draw. 

The incident which is subject of the failed discrimination claim took place on 31 March last year when Kinsella attempted to enter Delaney’s in order to buy vape oil. 

An ex-smoker, Kinsella was accompanied by his wife and was not wearing a mask.

Shop owner, Joe Byrne told the WRC that a female shop assistant approached Kinsella and asked him to put on a facemask. 

Represented by solicitor, John Sinnott in the case, Byrne said that Kinsella said he did not need to wear it as he was exempt. 

Byrne then told him that he had a duty to protect his staff and his customers and asked him if he would wear a mask or a visor. Both were sold in the shop. 

Byrne said that Kinsella replied “No”. 

Byrne said that Kinsella was then asked to leave the shop and did leave but under protest. 

Byrne said that Kinsella was quite irate and moments later he came back and handed Byrne a copy of the relevant section of the Equal Status Act and a copy of the Statutory Instrument relating to the Covid-19 pandemic regulations.

Kinsella told the WRC hearing that he recorded the interaction with Byrne which he said he intended to use as evidence. 

Kinsella stated that he can’t wear a mask because it causes him distress. 

Kinsella gave evidence that when he puts on a facemask he suffers from shortness of breath, his gums start trembling, he gets dizzy, gets headaches, has increased heart rate and gets drowsy and he sweats profusely. 

He gets very stressed by the symptoms. He never felt the need to go to his GP because it only happens when he puts on a mask.

Kinsella said that he did not have to provide any evidence of that due to his GDPR rights and claimed that there is evidence that the use of facemasks restricts airflow and due to his shortness of breath he feels he can’t wear one. 

In her findings, O’Carroll found that Kinsella has failed to set out any facts that could lead her to conclude he has established a prima facia case of discrimination on grounds of a disability. 

She stated: “No evidence whatsoever was produced in relation to his alleged medical condition.”

O’Carroll stated that Kinsella admitted that he has never even gone to a doctor for his shortness of breath. 

O’Carroll noted that even if Kinsella had established that he came within “reasonable excuse” category for not wearing a mask, he was offered a face shield, which he declined.

O’Carroll stated that Kinsella refused the face shield offer without any explanation and the shop had a general policy of “no mask no service” that was applied to everyone equally.

On Wednesday, Byrne said that he welcomed the WRC ruling. He said during Covid-19 restrictions the shop’s ‘no mask no service’ policy was in place “to protect our customers and staff”.