Complainant

Respondent

Anonymised Parties

A recipient of an income protection benefit

An Insurance Underwriter

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00046854-001

26/10/2021

WRC procedures allow for anonymity in ‘special circumstances’ which may include circumstances where a party has a disability or medical condition, which they do not wish to be revealed. Such circumstances exist in this case and I have decided to anonymise the parties.

A complaint under the Equal Status Act, 2000 was received by the WRC on 26 October 2021. An in-person hearing of the complaint was held on 26 September 2022.

The Complainant provided a number of documents as submissions.

The Complainant submits that he was discriminated by the Respondent in the provision of goods or services. That he was discriminated by reason of his disability, the most recent date of discrimination being 24 August 2021. The Complainant sent an ES1 Form to the Respondent on 20 September 2021.  The Respondent replied to the ES1 Form on 26 October 2021.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

In his complaint form, the Complainant submits that the Respondent has failed to respect and observe his medical conditions, civil & legal rights and disabilities by their insensitive, unethical, unlawful, coercive, and discriminatory behaviour and conduct. The Complainant asserts there has been a breach of his civil and legal rights that constitutes unlawful harassment and discrimination.  The Complainant asserts that the Respondent failed to give him reasonable accommodation for his disability and that he was victimised as a result causing him harm.

The Complainant submits that the Respondent was fully aware that he was unable to wear any type of face mask, visor or any other PPE or use hand sanitiser before, during or after an medical appointment made by the Respondent for the Complainant. The Complainant submits that coercive requirements were made; he was told he must attend an assessment and that the consultant required him to wear a protective face covering.  He was told that if he did not attend the assessment the Respondent might delay or suspend payment of his income protection benefit payment.

The Complainant submits that he received an email on 24 August 2021 from the Respondent, which required that he attend a medical assessment. For the assessment he was told that he was required by the consultant to wear a protective face covering. The email also contained the following, “If you are not in a position to attend the above appointment, this may result in a delay or suspension of your income protection benefit”.

The Complainant objected to these requirements and entered into correspondence with the Respondent about the matter, which continued for some time.  In October2021, the Respondent sourced a medical consultant to carry out the assessment who did not require the Complainant to wear a face covering.

The Complainant submits that the Respondent’s failure to respect and observe his inability to wear a mask, his medical conditions and disabilities and their insensitive, unethical and persistent discriminatory behaviour and conduct has significantly affected his mental health and wellbeing and has exacerbated anxiety and depression.

The Complainant gave evidence under Affirmation. He stated that the Respondent was aware he had a mental health disability as he had made clear in emails of 18 September 2020 and 21 July 2021. It was also clear to the Respondent that due to this disability he was unable to wear a face mask. The Complainant referred to a GP’s letter in which the GP specified that the Complainant was unable to wear a face mask due to his mental health issues. Knowing that such a disability existed the there was no basis to justify the Respondent’s behaviour towards him.

The Complainant stated that the emails he received from the Respondent telling him that he was required to attend an assessment were coercive.  His rights had been dismissed by the Respondent and this was unlawful and discriminatory; they failed to consider his disability. This had a negative impact on his mental health.

The Complainant stated that as the Respondent was aware of his disability and failed to respect the implications of it amounted to victimisation. The Respondent’s actions were unlawful and caused him harm.  The Complainant stated that there was no general requirement nor legal basis to wear a mask, that a reasonable excuse allows an exemption. He believes his conduct was entirely reasonable. The Complainant stated that the episode had had a serious impact upon him and had exacerbated his disability.

In conclusion the Complainant stated that the Respondent was aware of his mental health disabilities which prevented him from wearing a mask and that to say otherwise was disingenuous.

The Respondent provided a written submission.

By way of background, the Respondent submits that the within complaint arose out of a request made of the Complainant to wear a face mask whilst attending a medical, (FCE), review during the Covid-19 pandemic, in August 2021.  The request was made on foot of the requirement by the consultant carrying out the FCE assessment on behalf of the Respondent, that all patients attending him wear a face mask. In light of the Complainant’s confirmation that he would not attend wearing a face mask the proposed FCE assessment did not take place. The Respondent subsequently procured an alternative medical consultant who was prepared to review the Complainant without the Complainant having to wear a face mask.

The Complainant is an employee of a bank and is a member of the bank’s Income Protection Scheme (the Scheme) which provides income protection insurance to cover the bank’s employees. The Respondent is the underwriter of the Scheme. Following a claim made by the Complainant the Respondent commenced payment of the benefit to the Complainant under the Scheme in 2016.

Payment under the Scheme is predicated on the individual continuing to satisfy the definition of “disability” under the Scheme. If an individual no longer satisfies the definition of “Disability” under the Scheme, the Respondent is entitled to cease payment of the claim in accordance with the terms of the Scheme. When a claim is being paid under the Scheme, the Respondent is entitled to carry out periodic assessments as to whether the individual receiving the benefit continues to satisfy the definition of “Disability” under the terms of the Scheme. In addition, the Respondent is entitled to delay or suspend benefit payment under the Scheme if the individual claiming the benefit fails to undergo any required test or examination.

On 16 September2020, the Respondent advised the Complainant that he was required to attend an FCE assessment on 1 October 2020. The Complainant replied indicating that he was unable to attend on that date. A second appointment for an FCE assessment was made for 3 August 2021, this was communicated to the Complainant on 21 July 2021. The Complainant was again unable to attend and requested an appointment after 16 August 2021. The Complainant also replied in his response of 21 July 2021, that he would be unable to wear any face covering at the proposed appointment.

The Respondent submits that they contacted the consultant’s office querying whether the practice was comfortable with a patient not wearing a facemask.  The office replied stating that face masks or face coverings had to be worn by everyone entering both the clinic and the hospital buildings.  The Respondent contacted the consultant directly to find out if he would evaluate the Complainant if the Complainant was not wearing a face mask. The consultant advised that he required patients who enter his clinic to wear a face mask.

On 24 August 2021, the Respondent emailed the Complainant regarding a third proposed appointment with the consultant for 31 August 2021. The email warned that Complainant that failure to attend the appointment might result in a delay or suspension of his income protection benefit payment.

The complainant issued a formal complaint to the Respondent on 25 August 2021. On foot of the Complainant’s refusal to attend the proposed assessment the appointment scheduled for 25 August 2021 was cancelled.

A fourth appointment was arranged with another specialist who was prepared to meet the Complainant without his wearing a face mask. This appointment proceeded on 6 December 2021. At all times the Complainant has and remains in receipt of income protection benefit under the scheme.

The Respondent submits that, as underwriter of the scheme, the Respondent has an interest and an obligation to properly and fairly assess claims under the Scheme.  To this end, the Respondent is entitled and indeed required to request that claimants attend medical appointments to medically assess whether they continue to suffer from “Disability” in accordance with the terms of the Scheme. The Complainant was required by the medical consultant appointed to assess the Complainant that he must wear a face mask.

The Respondent submits that the Complainant’s allegation that the request that he confirm that he wear a face mask whilst attending a medical assessment during the course of the COVID-19 pandemic constitutes discrimination is absurd. It was entirely reasonable and appropriate for the Respondent to make such a request. 

Notwithstanding the reasonableness of the Respondent’s position, in light of the Complainant’s continuing refusal to attend a medical consultation wearing a face mask, the Respondent made reasonable accommodation by referring him to a medical consultant who did not require him to wear a face mask for the purposes of carrying out a medical review.

The Respondent submits that the Complainant’s allegation of victimisation is misconceived in circumstances where the matters of complaint relate to issues that pre-date the making of this complaint to the WRC or other engagement with the WRC nor is or has the Complainant been able to point to any less favourable treatment than any other comparator, real or hypothetical.

The Respondent’s Representative replied to the Complainant’s evidence on the Respondent’s behalf.  The Representative stated that the Complainant had failed to establish that he had a disability, that no credible independence to support this claim had been brought forward. He also stated that there had not been any unfavourable treatment to the detriment of the Complainant; he was requested to wear a face mask which could not constitute adverse treatment; his payment was not suspended; there had been no adverse publicity.

The Representative denied the allegation that the language used by the Respondent was “coercive”, rather this is the typical type of language used in the context of a refusal to attend two appointments. The Representative put forward that the Complainant has failed to establish a prima facie case of disability.

In conclusion, the Respondent submits that it is clear the Complainant was not discriminated against, victimised or harassed.

The facts of this case are not in dispute.

The Complainant asserts that the request made that he wear a face mask whilst attending a medical assessment during the course of the COVID-19 pandemic constituted discrimination on grounds of disability and that his treatment at the hands of the Respondent amounted to victimisation.

The issue for decision by me now is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of 3(2) of the Equal Status Acts, 2000-2015.

In reaching my Decision I have considered all the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the Complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred.

Therefore, 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. I am satisfied that the Respondent is providing a service within the meaning of the Equal Status Acts.

It is submitted that the Complainant is a person with a disability for the purposes of the Act.   Section 2 of the Equal Status Act, 2000 defines “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….”.

The three questions that arise for consideration in this Equal Status Act Adjudication are:

(i)    Did the Complainant have a disability?

(ii)    Did the Respondent, at the material time, know he had a disability?

(iii)  Was he refused a service/ discriminated against because of his disability?

My findings in relation to these three points:

(i) In his submission and in his evidence the Complainant asserted that he had a disability which prevented him from wearing a face mask, his evidence was a letter from his GP referring to mental issues, which was never opened to the hearing, and the contents of emails he had sent to the Respondent when he was told he must attend a medical consultant for assessment which would necessitate him wearing a face mask. The Complainant when questioned, stated that his doctor’s letter was sufficient to show he had a disability.  The Complainant did not have any credible independent evidence to support his assertion.  It is up to the Complainant to prove he had a disability which prevented him from wearing a mask.  Without credible evidence I cannot find other than he has not reached the threshold required to prove the existence of such a disability, therefore his claim falls at the first hurdle.

For the sake of completeness, I will now look at points (ii) and (iii).

(ii) In addition to being satisfied that the Complainant suffers from a disability, I must also be satisfied that the Respondent was aware of such disability and that the Respondent treated the Complainant less favourably on grounds of that disability. In this instant case from the evidence adduced I find the Respondent was not aware of a disability such as to render the wearing of a face mask impossible for the Complainant.  The fact that the Complainant stated he was unable to wear a face mask does not amount to proof of a disability. Proof requires more than assertions. If follows that if the Respondent was unaware of the existence of a disability it could not have treated the Complainant less favourably than on the grounds of the alleged disability.

(iii) Was the Complainant denied a service? I find he was not. He never suffered any detriment because of his stand on a wearing face mask. His income benefit was never stopped or suspended.   It is also noted that the Respondent went to a deal of trouble in finding a medical practitioner who was willing to assess the Complainant without a mask and scheduled another appointment for the Complainant.

 The Complainant asserts that he was treated less favourably on the grounds of his disability. The Complainant is required to demonstrate that a prima facia case of discrimination exists. 

Although I found the evidence of the Complainant to be sincere and I fully accept that he felt affronted by what happened to him in relation to the medical assessment, I find that for the reasons set out above that the Complainant has not proven that the Respondent acted in manner which was discriminatory.

In such circumstances I am satisfied that the Complainant has failed to establish a prima facie case of discrimination on grounds of disability.   Accordingly, I am satisfied that the Complainant was not discriminated against by the Respondent on grounds of disability.

For the above reasons I find the Respondent did not engage in prohibited behaviour.

The Respondent did not engage in prohibited behaviour

Discrimination, disability, victimisation, face mask.