Complainant

Respondent

Anonymised Parties

A recruitment executive

A recruitment consultancy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013795-001

6 Sept 2017

The respondent is a recruitment consultancy with a number of branches across Ireland. The complainant commenced employment in the Naas branch on February 4th 2017. He suffers from hay fever and he left his job after six months because he said that other employees were complaining about him sneezing and sniffing in the office. He said that a colleague suggested that he was taking cocaine at weekends.

His complaint is that he was discriminated against because he has a disability. He claims that his discrimination relates to not being given adequate training and being victimised and harassed. He complains that he was unfairly criticised and verbally attacked by a senior employee following a work-related matter and that this person also accused him of taking cocaine.

Hay Fever as a Disability

For the respondent, Mr Whelan submitted that hay fever is not a disability and does not fall within the conditions prescribed in section 2 of the Employment Equality Acts 1998 – 2015 (“the Acts”).   In support of this, he referred to the Health Services Executive (HSE) definition of hay fever as,

“…a type of allergic rhinitis caused by pollen or spores.   Allergic rhinitis is a condition where an allergen (something that causes an allergic reaction) makes the inside of your nose inflamed (swollen).”

As a common seasonal condition affecting around 20% of the population, Mr Whelan argued that hay fever is a normal immune response to the presence of allergens and is highly treatable.

The World Health Organisation (WHO) has a similar definition:

“Allergic rhinitis or hay fever happens when you breathe in something to which you are allergic and the inside of your nose becomes inflamed and swollen.”

The WHO website explains that hay fever can be seasonal, caused by mould or grass, weed or tree pollens, or it can be perennial, caused by pet hair, indoor mould or dust mites. It is estimated that around 20% of the population in the western hemisphere suffers from the condition. While there is no cure, over the counter anti-histamines and corticosteroids alleviate the symptoms for most sufferers.

In his complaint form, the complainant selected the box with the option that indicated that he had been discriminated against because of a disability. At the hearing, he said “maybe I lodged the complaint the wrong way.” He said that he left his job after six months because he “got to the end of my wits” with people complaining about him. He did not produce any medical evidence that he has hay fever, or the extent of the allergy as he experienced it.

Hay Fever as a Disability

“Disability” is defined in section 2 of the Employment Equality Acts as:

“(a)   the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)   the presence in the body of organisms causing, or likely to cause chronic illness or disease,

(c)   the malfunction, malformation or disfigurement of a part of a person’s body,

(d)   a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)   a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

Under (c) above, some consideration could be given to the possibility that hay fever is a “malfunction of the nose” due to its becoming inflamed and swollen. However, in the paper submitted by Mr Whelan for the respondent, he referred to a study by the Employment and Disability Institute at Cornell University which states:

“Hypersensitivity or allergy is not due to an alteration of the immune system by a foreign substance, but it is an appropriate activation of the immune system. In other words, an allergy is a normal immune response with deleterious consequences, such as allergic rhinitis, hay fever or contact sensitivity.”

From this explanation, an allergy such as hay fever is a normal response of the immune system to allergens such as pollen or dust. The effect of this normal immune response is that the nose “malfunctions” by producing mucous and inducing sneezing.

In the Labour Court case of a Government Department and a Worker, EDA 094, the chairman, Mr Duffy, stated that the Employment Equality Act “is a remedial social statute” and the definition of disability “ought to be construed as widely and as liberally as possible consistent with fairness.” He went on:

“Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

Hay fever is a condition that affects around one in five people, generally in summertime and in most cases, it can be managed with anti-histamine tablets bought over the counter in pharmacies. Immunotherapy is an option where anti-histamines are ineffective. For hay fever sufferers in the workplace, no accommodation or special facilities are required, apart from a relatively dust-free environment, and this is a hygiene standard which applies to all employees.

Taking as a baseline the requirement for an interpretation of the law not to be absurd or “repugnant to common sense,” I have to conclude that hay fever is not a disability in accordance with the meaning intended by the statute.

As I have concluded that hay fever is not a disability as intended by the definition set out in section 2 of the Employment Equality Acts, I accept the argument of the respondent on this preliminary point and I find against the complainant.

Hay fever, disability, discrimination