Complainant

Respondent

Parties

Graham  Leggett

Joseph Brennan Bakeries

Representatives

  James Maher, Greg Ryan Solicitors

Robin Hyde, Alastair Purdy & Co

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-00043657-001

19/04/2021

The respondent is a bakery with circa 180 employees based at two sites.  The complainant began his employment with the respondent more than 20 years ago.

Two witnesses for the complainant and two for the respondent gave their evidence under oath.

The hearing was held in public in Lansdowne House, Dublin.

The respondent noted that the initial complainant was taken under the Equal Status Act but acknowledged that the narrative appeared to refer to a Employment Equality Act complaint.  Both sets of submissions were made citing the Employment Equality Act 1998.

The complainant submitted that he was discriminated against on the basis of his disability and that he was treated unlawfully by the respondent’s failure to provide him with reasonable accommodation for his disability.

The complainant submitted that he had asthma and that he had informed the respondent of this in the years prior to the complaint.

The complainant submitted that the respondent unilaterally introduced mandatory mask wearing on 31 December 2020.  The respondent submitted that he cannot wear a mask because he is asthmatic, and that the respondent refused to let him work from 10 January 2021 due to his disability.

The complainant submitted that he had an offsite meeting on 24 February where nothing was decided but that he received a call the following day when the respondent proposed that he could create his own position where he would not have to wear a face mask.  He submitted that the respondent wanted a letter from his GP stating that he could not wear a mask.  The complainant submitted that he sought a letter but that his GP refused to certify that he could not wear a mask.

The complainant submitted that the HSE website does not require him to wear a mask and that the relevant Statutory Instrument does not require him to wear a mask.

As a preliminary matter, the respondent submitted that it was not on notice of any alleged disability that rendered the complainant either unfit for work or that required him to be allowed to work without a face covering.  The respondent also submitted that the complainant has failed to identify any comparator that he was treated less favourably than.

The respondent further submitted that the complainant is required to adduce evidence so as to establish a prima facie case of discrimination and he has failed to adduce any such evidence.

The respondent accepted that the complainant has asthma but submitted that this did not preclude his wearing a face covering.  The respondent sought medical evidence that the complainant was not in a position to wear a face covering but no such evidence was provided.

The respondent submitted that it did receive a medical certificate stating that the complainant suffered from asthma but that he was in receipt of inhaler treatment for stable asthma.  The medical certificate did not provide any commentary stating that the complainant was exempt from mask wearing or that his breathing was impacted whilst wearing a mask.

The respondent submitted that all its employees were subject to mask wearing form 31 December 2020.  It had taken progressive steps such as social distancing and encouraging voluntary mask wearing btu that it felt that the position required mask wearing from the end of 2020.

The respondent submitted that the requirement for reasonable accommodation only arises where the complainant is unfit to work, and it is obliged to provide reasonable accommodation to an employee.  It is submitted that the complainant was at all times fully fit to engage in work.

The respondent submitted that the complainant has failed to establish the existence of a prima facie case.  During the time period in question, the Government advice on mask wearing was sufficiently clear.  Notwithstanding its foregoing arguments, the respondent submitted that if any discriminatory treatment took place, it would amount to indirect discrimination and submitted that it had satisfied the objective justification requirement in a situation where the Covid 19 Pandemic required the Government to introduce the mask wearing mandate on a large scale basis.

Less favourable treatment

Section 6 of the Employment Equality Act, 1998 states that

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 in subsection (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 of paragraph (a) , constitute discrimination. ]

Despite being asked to do so by the respondent, the complainant was unable to point to another employee against whom he was less favourably.

Burden of Proof

Section 85A(1)  of the Employment Equality Act, 1998 states that:

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.

The complainant submitted that he has asthma, and this was accepted by the respondent.  The complainant also submitted that when he sought a medical certificate from his General Practitioner stating that he had a medical reason for not wearing a mask, his GP refused to provide such a certificate.  The complainant was never certified as unfit for work and did not provide any medical evidence of a requirement to not wear a mask during work.

The respondent submitted that in all the circumstances, the complainant has not established facts from which it may be presumed that there has been discrimination.  In support of this contention, the respondent noted the case of Melbury v Valpeters (EDA9017) stating that 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 rules”.

The conclusions of the Labour Court in that case commence with the following:

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must 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.

Having considered all the written and oral submissions in this case, I am not satisfied that the complainant has established facts of such significance as to raise a presumption of discrimination and accordingly I find that the burden of proof has not shifted to the respondent.

In relation to the allegation that the respondent has not provided reasonable accommodation as required in the Act, Section 16 of the Employment Equality Act, 1998 deals with the nature and extent of an employer’s obligations in certain cases.  It states, inter alia, that:

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;

The respondent submitted that the complainant never asserted that he was unfit to carry out his work or provided medical evidence of requiring appropriate measures to undertake his employment.  The complainant stated that the respondent never afforded him reasonable accommodation but clarified that the respondent offered him several options regarding face coverings.  In response to questions from the respondent he refused to answer when he was asked whether he believed if Covid existed and indicated that he was not vaccinated.  He indicated that he was entitled to bodily integrity and should not be forced to wear a mask.

When asked what reasonable accommodation he was seeking, the complainant submitted that he wanted to be allowed to stay at home from work but to be paid for the period when mask wearing was mandatory.  He confirmed on more than one occasion that he did not submit a medical certificate indicating that he could not wear a mask in the workplace.

Having regard to the written and oral submissions, I am satisfied that the complainant never indicated that his disability meant that he could only undertake his work with the benefit of reasonable accommodation.  Rather than seeking reasonable accommodation, it became apparent as the case proceeded that the complainant was seeking absolute accommodation, staying at home on full pay for as long as the mandatory mask requirement existed.

I note that no dismissal or termination of employment has taken place in relation to the complainant and that he has been offered the opportunity to return to the workplace on a number of occasions since the mandatory mask wearing rule was withdrawn in February 2022 but has not taken up the opportunity.  The complainant was asked if he intended to return to work but replied that he didn’t think so and in response to another similar question regarding his return to work indicated “probably not”.  Arising from this the respondent suggested that the complainant’s refusal to attend work was down to his beliefs rather than any disability.

Having regard to the written and oral evidence in relation to this complaint, I find that the complainant did not seek reasonable accommodation.

Having regard to the written and oral evidence submitted in relation to this case, my decision is that the complainant was not discriminated against.

Employment Equality Act – burden of proof – no shift in the burden - reasonable accommodation – not sought – complainant fit for work.