Complainant

Respondent

Anonymised Parties

A Graphic Designer

A Charity

Representatives

  N/A

John Smith BL instructed by Cormac O’Ceallaigh Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044523-001

08/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044523-002

08/06/2021

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

CA-00044523-003

08/06/2021

The Complainant was offered employment as a Graphic Designer with the Respondent in May 2021 as part of a Community Employment Scheme. She stated that the Respondent discriminated against her when they failed to afford her reasonable accommodation by requiring her to wear a mask in the workplace although she had a disability.

The Complainant did not provide any written submission to the hearing and could not recall any of the key dates when asked to give her direct evidence.

The Complainant stated that when she initially went to the Respondent’s offices to sign the Community Employment eligibility form, she made them aware that she was exempt from wearing a face mask and there was no issue with this.

She stated that despite this having told the Respondent this and there being no legal requirement to confirm that she was exempt from wearing a face covering, she received an email from the Respondent a few weeks later stating that she was required to obtain a medical certificate from her doctor. She provided a copy of same which confirmed that she should not have to wear a mask because she had sinusitis, namely a disability.

She also stated that she could not walk or stand with a face mask on because it caused her to become dizzy. She further alleged that in 2020 when she went into a supermarket with her face mask on, she felt dizzy after 20 minutes.

She stated that the email she received from the Respondent cancelling her job offer with no discussion or explanation was unfair. She also stated in evidence that it was not reasonable to ask people to cover their noses and that it was a breach of human rights.

The Respondent stated that having received a referral notification from the Department of Social Protection on 7 April 2021 in relation to the Complainant, they sent her an application form which she completed on 10 April 2021. Further to a successful interview on 21 April 2021, the Complainant attended the Respondent’s premises on 27 April 2021 to sign the Community Employment eligibility forms and informed them that she was exempt from wearing a mask in the workplace.

Having received confirmation from the Department of Social Protection on 18 May 2021 of a start date, the Respondent contacted the Complainant on 19 May and informed her that she could begin her employment on 24 May. She was also informed that she should bring a mask with her and if she was unable to wear a mask, she should bring a letter from her medical consultant. The Complainant subsequently provided a letter from her GP on 19 May which stated inter alia that:

 “As she is required to wear face mask (sic) (for long hours) (sic) during working hours, this has affected her breathing and caused dizziness with recurrence of sinusitis

She had few incidents in which she felt dizzy (sic), nearly fainting after wearing face mask, the same symptoms after wearing any face covering, including shield. I would request that (sic) to be exempted from wearing face covering during working hours to avoid the same symptoms”.

The Respondent understood from this letter that it would cause a difficulty for the Complainant to wear a mask for the entirety of her time in the workplace and responded on 20 May 2020 stating that she could remove the face covering while sitting at her desk and would only have to wear it “while standing, moving around and in mixed space e.g. shared dining room”.

The Complainant in response refused to agree to this and stated that she could not walk or stand with the face mask on as it made her feel dizzy. As a result the Respondent replied to her and stated that they would be suspending her start date until such time as it was safe for all concerned. The Complainant stated in reply that she did not feel welcome by the Respondent as a result and intended to seek further employment elsewhere.

CA-00044523-003:

The Law

The Employment Equality Act at relevant part states:

2.“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, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement 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;

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 insubsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

ANALYSIS

The Complainant alleges that she had a disability and that the Respondent failed to make a reasonable accommodation for same, contrary to s. 16 (3) of the Employment Equality Acts above, and I must determine whether or not to uphold this allegation of discrimination.

The Respondent disputed that the Complainant had a disability as defined by the Act around the time she was due to start her employment and alleged that even if she had, they provided reasonable accommodation for her by not requiring her to wear a mask while she was sitting at her desk.

The Complainant in her evidence sought to rely on a medical certificate provide by her GP in support of her contention both that she had a disability and that she needed reasonable accommodation because could not wear a mask in the workplace.

Specifically, this medical certificate stated inter alia that:

 “As she is required to wear face mask (sic) (for long hours) (sic) during working hours, this has affected her breathing and caused dizziness with recurrence of sinusitis

She had few incidents in which she felt dizzy (sic), nearly fainting after wearing face mask, the same symptoms after wearing any face covering, including shield. I would request that (sic) to be exempted from wearing face covering during working hours to avoid the same symptoms”.

In making a finding on whether or not the Complainant had a disability, I note the decision of the Labour Court in the matter of Customer Perception Limited v Gemma Leydon (ED 02/1) 2003 which stated:

Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.

The Equality Officer in the matter had previously held

“In my view, both asthma and irritable bowel syndrome are malfunctions of the airways and the lungs and the internal tract respectively and more appropriately fall within the definition contained at subsection (c). I therefore accept that both conditions amount to disabilities within the meaning of the Act”.

Furthermore, in Mrs S Board v EDF Energy Limited (Case No. 1403284/2018) the English Employment Appeals Tribunal considered whether or not sinusitis fell within the meaning of disability under English law. Employment Judge Rayner held in that case that the Complainant was disabled in light of her conditions.

In light of the foregoing, I am satisfied that the Complainant’s condition amounted to a disability within the meaning of the Act and must therefore now examine whether the Respondent afforded her reasonable accommodation in respect of same.

In assessing whether or not reasonable accommodation was afforded to the Complainant by the Respondent, I note that having read the medical certificate, from which it is clear that the Complainant’s doctor was under the impression that the Complainant would have to wear a face mask for long hours (my emphasis), the Respondent informed her that she would be allowed to remove her face covering while at her desk but would have to wear it while standing, moving around and in mixed spaces.

The Complainant disputed this understanding of the medical certificate, stating that her doctor was not a native English speaker and that she had meant that the Complainant could not wear a mask in any circumstances. I further noted that when informed by the Respondent via email on 20 May 2021 that she could only remove her face covering while at her desk, the Complainant replied that she could not “walk or stand” with a face covering on as this made her feel dizzy. As a result, the Respondent suspended the offer of employment until such time as it was safe for the Complainant not to wear a mask at all times in the workplace.

In the circumstances, I cannot understand why the Complainant did not seek further a further medical certificate from her doctor clarifying what had been meant because any reasonable person would understand from reading the certificate provided that the Complainant’s sinusitis, namely her disability, only manifests itself when she is required to wear her face mask for a number of hours. Otherwise, her doctor would have omitted any reference to “long hours” from the certificate. Moreover, I noted the Complainant’s evidence when questioned by me that she had worn a mask for 20 minutes the previous year in a supermarket before she felt dizzy. This is at odds with her assertion to the Respondent that she could not “walk or stand” with a face covering on and caused me to question her credibility.

On the basis of the evidence presented to me, I am satisfied that while the Complainant had a disability as defined by the Act, the Respondent afforded her reasonable accommodation in allowing her to remove her face covering while at her desk.

CA-00044523-001:

Preliminary Matter:

3. Under Section 1 of the the Terms of Employment (Information) Act 1994 an “employee” means a:

“person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board , as the case may be.”

A contract of employment is defined under Section 1 as follows:

“(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract,

whether the contract is express or implied and if express, whether it is oral or in writing;”

I note that the Complainant was a candidate for a role with the Respondent and was made an offer of employment, but this was rescinded in writing by the Respondent on 20 May 2021. Moreover, the offer was withdrawn before the proposed commencement date of 24 May 2021.

In circumstances where the Complainant was never an employee of the Respondent, she has no locus standi to bring a claim under the 1994 Act and I do not have jurisdiction to hear the matter.

CA-00044523-002:

This complaint is identical to CA-00044523-001 and was made in error. In circumstances where the Complainant was never an employee of the Respondent, she has no locus standi to bring a claim under the 1994 Act and I do not have jurisdiction to hear the matter.

CA-00044523-003:

I find that the Complainant was not discriminated against for the reasons set out above.