Complainant

Respondent

Anonymised Parties

An Outpatient

A Clinic

Representatives

  Self-Represented

 Billy Brick- O’Flynn and O’Driscoll Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

 CA-00043095-001

16/03/2021

The Complainant submits that he has had Autism since birth and that he was discriminated against by the Respondent in not reasonably accommodating him regarding the provision of medical services by insisting that he wear a mask, contrary to section 4 of the Equal Status Act 2000, as amended, (hereinafter ‘The Act’). The Respondent denies the discriminatory treatment as described arguing instead that the refusal of medical service on the day in question was due to a breakdown in communication.

The Complainant was referred to the Respondent’s clinic by his GP for an ultrasound scan. He received a phone call from the Respondent’s call centre on a Saturday, approximately 12 days before hand, to advise him that an appointment had been scheduled for him on 14 December 2020. He specifically asked if there would be any issues in relation to him not been able to wear a face covering, as he has Autism. He was assured that there would not be. When he arrived into the Clinic on the allotted day he was informed that the scan would not be performed because of his inability to wear a face covering. He had also informed the receptionist, on the day, that he had Autism.

The Complainant exhibited a letter on the Respondent’s headed paper, signed by a senior manager, stating that they were not going to provide him with the service due to his inability to wear a face mask.

The Complainant enquired at two other medical facilities and was assured that he would be accommodated. He subsequently took the ultrasound scan at one of those facilities where an appointment was made for him at a designated quiet time on a specific day, so that any risk could be contained with regard to other patients and staff.

The Respondent did not dispute the facts as outlined by the Complainant nor did it dispute the fact that he had a disability which was properly notified to the Respondent in advance of the appointment, as well as on the day he was to attend for an ultrasound scan.

The Respondent submits that the there was a miscommunication between staff on what the correct policy was and the Complainant was unfortunately discommoded because of this.

A senior clinical manager with the Respondent gave an outline of the stringent safety standards that are applied at the Respondent’s clinic. She described the enormous pressures the staff were under during the unprecedented pandemic at the time the Complainant visited the clinic. She stated that the policy on mask wearing evolved as the pandemic developed and that this might explain the miscommunication of policy.  

The Relevant Legislation:

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines disability as follows:

“disability” means—

(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 disease or illness,

(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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

The Burden of proof provision at section 38A provides

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant in equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant must first establish a prima facie case of discrimination which is a twofold process: (1) that he has a disability and (2) that he was subject to discriminatory treatment by a refusal of the Respondent to provide reasonable accommodation for his disability. 

Disability:

It was uncontested that the Complainant had Autism since birth and such was his condition that he would be distressed if he were required to wear a mask. I am satisfied that the Complainant had a disability as defined under section 2 of the Act.

Reasonable Accommodation:

The ‘Reasonable Accommodation’ provision in the Act, in its relevant part,  at section 4 provides:  

(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

There was no conflict of evidence with regards to the facts. The Complainant had informed the Respondent in a timely manner, in advance of the hearing, that he could not wear a mask because of his Autism. He was assured that this would not be a problem by the Respondent’s staff member, which, on the face of it suggests that his disability would be accommodated. However, it transpired that when he turned up on the day he was bluntly refused the service he was booked in for, with no attempt by the Respondent to accommodate him. This was despit the previous assurances received.   This refusal can be graphically contrasted with the treatment in another medical facility, when the Complainant some months later, received his ultrasound scan without a mask as a result of what seemed to be cost neutral adjustment to the schedule.

The Respondent, in effect, admitted its failure to reasonably accommodate the Complainant in the manner described, and whereas it proffered a valid excuse with regard to miscommunication of policy, the plain fact of the matter was that there was no attempt to facilitate the Complainant despite the Respondent having full knowledge of the nature of the Complainants disability.  Significantly, the Complainant had actively sought reasonable accommodation from first contact with the Respondent.  No evidence was given that any kind of consultation or analysis of alternatives to mask wearing was taken, despite the Complainant’s clear request to be accommodated. I note also that these events occurred during Level 3 restrictions whereas the Complainant was accommodated shortly afterwards during the higher Level 5 restrictions.   

 In reaching my decision, I have taken into account all the evidence heard on the day and conclude that the Complainant established a prima facie case of discrimination, namely the refusal of the Respondent to reasonably accommodate his disability in breach of section 4 of the Equal Status Act 200, as amended, and the Respondent did not prove the contrary.

CA-00043095-001: I find that the Respondent engaged in prohibited conduct under the Equal Status Acts 2000, as amended, for the reasons outlined above. I direct the Respondent to make compensation of €3,000 to the Complainant for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

 I also direct the Respondent to ensure that all staff are educated with regard to the Respondent’s obligations under the Equal Status Acts, with a particular emphasis on the need to reasonably  accommodate patients with disabilities.

Equal Status Act 2000, Reasonable Accommodation, Disability, Covid-19, Mask Wearing