ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032315
Parties:
| Complainant | Respondent |
Parties | Lee Stella | Go Ahead Transport Services (Dublin) Limited t/a Go-Ahead Ireland |
Representatives |
| Claire Bruton B.L. instructed by Shane Costello of Holmes O'Malley Sexton LLP |
Complaint(s):
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-00042904-001 | 03/03/2021 |
Date of Adjudication Hearing: 09/06/2022
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. All evidence was given under oath or by affirmation. The parties were also given the opportunity to examine and cross examine each other’s evidence as part of the hearing.
Background:
The complainant says he was discriminated against by his employer on the grounds of his disability when he was instructed to wear a mask at work, disregarding his exemption. The respondent says the complainant provided no medical evidence to support his contention of an exemption. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent as a bus driver on 1 July 2017. On 5 February 2021 shortly after he signed in for work in the depot he was asked, by the Health and Safety Manager, where his mask was. He told her he was exempt. She asked if he would wear a visor and the complainant said no. The Health and Safety Manager then rang the main manager, who called the complainant outside and told him he could not be on the grounds or inside the Depot if he did not wear a mask and he would be sent home if he did not comply. The complainant asked if he was being dismissed and the manager told him he would be marked as absent without pay. The complainant later wrote a letter to the manager telling him that wearing a mask or visor would cause him severe distress and pointed out the exemptions within S.I. 296 and HSE guidelines. He said company policy could not supersede the law of the land and he wanted to return to work as normal and as soon as possible, and that he would socially distance. The manager was adamant that the complainant could only return to work if he wore a mask or visor. He submits his disability was not being considered and this amounts to discrimination. Another bus driver gave evidence at the hearing that he mostly did not wear a mask but agreed he did wear a mask when asked to do so. He had seen other drivers not wearing a mask. He said he was not aware of the respondent’s policy. The respondent asked if he was aware of the Health & Safety Notices on the driver App and he said he did not use the App. |
Summary of Respondent’s Case:
The respondent submits that following the commencement of the Covid-19 pandemic they put in place a Covid-19 policy which outlines the measures to be taken to ensure the health and safety and wellbeing of its staff members and mitigations in place to stop the spread of Covid-19. Among other things the policy provided that “All colleagues should wear a face covering when moving around the depot.” On 5 February 2021 the complainant was requested to leave work and was marked as absent due to his failure to comply with the respondent’s policy of wearing a mask or a visor. He provided a self-declaration form under S.I 296/2020 stating that he was exempt from wearing the face covering but provided no medical information to justify this. On 8 February the complainant wrote to the Operations Manager, Mr Aled Williams, to inform him he had a reasonable excuse for not wearing a mask but he was “not providing you with any evidence for this”. The complainant sent a number of emails seeking a return to work but at no time did he provide any medical evidence, or any evidence whatsoever, of his alleged inability to wear a mask. On 24 February Mr Williams wrote to the complainant and reiterated the respondent’s position regarding the obligation to wear face coverings. He said he was happy to meet but the complainant would be required to wear a face covering/face shield at the meeting. It was also noted the complainant sometimes rode a motorbike to work and wore a helmet which Mr Williams thought would be more intrusive than a face covering. After some further correspondence the respondent was forced to commence a disciplinary process in respect of the complainant’s failure to follow a reasonable management instruction. The complainant was informed of this on 16 April 2021 and a disciplinary hearing took place on 10 May 2021. The complainant was asked to elaborate on why he could not wear a face covering and he said no. The complainant said he would stand 3 metres apart from everybody but the company policy was explained to him on a number of occasions during the meeting. Because of his refusal to wear a face covering the complainant was issued with a verbal warning on 18 May 2021. This was appealed by the complainant and upheld on appeal. The complainant was absent from work from 5 February to 6 September 2021 due to his refusal to wear a face mask/shield. The respondent submits the complainant provided no medical evidence of his alleged disability which prevented him from wearing a face mask or face covering while at work. The complainant did refer to attending a GP but no medical cert was forthcoming. In these circumstances the respondent submits the complainant does not have the locus standi to bring this complaint as he has failed to provide any evidence of a disability within the meaning of section of the Employment Equality Acts. |
Findings and Conclusions:
The complainant contends that the respondent’s insistence on him wearing a face mask or visor was discriminatory on the grounds of disability under the Employment Equality Acts. When asked to wear a mask on 5 February 2021 he refused and claimed an exemption from the wearing of a face mask or visor under S.I. 296 of 2020, saying it would have caused him “severe distress” and he provided a self-declaration form. I am not looking into whether the respondent correctly dealt with the complainant in the implementation of S.I. 296 of 2020 but whether he suffered discrimination under the Employment Equality Acts, on the grounds of disability. Section 6 of the Employment Equality Act 1998 states: “(1) For the purpose of this Act…discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (referred to as the “discriminatory grounds”) (2) As between any 2 persons, the discriminatory grounds .. are… (g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) … The complainant stated in an email on 8 February 2021 (three days after being sent home for not wearing a mask) “In response to your email I have enclosed my legal right to exemption from wearing a face mask due to the fact that I have a reasonable excuse. Under the GDPR Act I do not by law have to provide you with any evidence for this. He also stated the respondent was now aware that he had a disability. Then, at the disciplinary meeting on 10 May 2021 the complainant was asked to elaborate on why he couldn’t wear a face covering and he refused. This complaint was referred to the WRC on 3 March 2021, therefore my investigation is into allegations of discrimination before that date. The respondent has said they had no evidence the complainant suffered from a disability and therefore no discrimination could have taken place. The events I am looking into start on 5 February 2021 when the complainant refused to wear a mask or visor and was sent home. The exemption he claimed was made on the complainant’s contention this would cause him “severe distress” but gave no indication what this was. On 8 February 2021 he stated he had a legal right, under GDPR not to provide evidence of his reason for refusing to wear a mask or visor. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant refused to give the respondent evidence of a disability to the respondent during the period to which his claim applies. In these circumstances he is unable to show discrimination on the ground of disability took place. I therefore find he is unable to establish a prime facie case of discrimination. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons given above I find the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment. |
Dated: 29-08-2022
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
No prima facie case of discrimination |