ADJ-00034159

Complainant

Respondent

Parties

Graham  Burke

Total ICT Services Limited

Representatives

  Self Represented

 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-00044423-001

29/05/2021

The Complainant alleged he was discriminated against when her refused/was unable to wear a face mask at work.

The Complainant was employed as an Onsite IT Support Engineer at a customer premises (Regeneron) a pharmaceutical company. Prior to the Pandemic he worked full time on site at the customer premises. 

The Complainant worked throughout the Pandemic, from home 4 days, onsite 1 Day, then went 3 days home, 2 days onsite, ending up 2 days home, 3 days onsite. In July 2019 Mandatory Face Covering Policy was implemented in the Respondents customer site. Straight away the Complainant informed the Respondent that he had great difficulty in wearing a face covering and no way could he do 9 hrs a day, He told the Respondent he would not be physically able to it. A visor was suggested and the Complainant wore this no problem for the months of July, August, September and October. In October 2020 he was instructed to turn up to work wearing a face-covering. He requested to work from home as per government guidelines. He explained to the Respondent that he wasn't capable of wearing a mask for more than a few minutes. He suggested as an alternative a visor covering the mouth but this was still not acceptable to the Respondent. In October 2020 the Respondent asked him to provide a Medical cert from his GP, which he did. On the 13th November he received a letter from the Respondent requesting he attend the Company Doctor.  On 18th November 2020 the Complainant visited the Company Doctor. On 11th November he received a letter instructing him to return to work adhering to face covering policy on the 16th.  On November 22nd he received a letter based on a company doctors report, which stated he was fit for unrestricted work ",ie. no mask" not restricted work, i.e wearing mask and appears to have genuine non-medical barriers to wearing a mask for prolonged periods”. The letter from the Respondent ignored what the doctor said with regards to the above and focused in on the physical aspects rather than the mental impact and requested he confirm that he will wear the cloth mask and that failure to follow this instruction may lead to company dealing with matter through disciplinary procedures. On the 26th November he received a letter placing him on sick leave, gave him 8 days sick leave, directed him to Social Welfare, and gave him links to Mental Health Services and the Samaritans. The 27th November was the first day of suspension from work. He then qualified for Illness Benefit of €203 a week not PUP of €350. On 18th December he received a voicemail from work from Erica Dempsey. On 20th January there was a follow up call, 2 months later after his last day.  On 8th March a letter was sent to Erica Dempsey from Dr. Mary Brennan confirming the Complainants long standing history of anxiety disorders, stating immense distress to the feeling of difficulty breathing making the wearing intolerable and highly distressing, asking his employer would they consider allowing him working from home or possible measures to work in isolation whilst on site. On 9th April the Complainant was invited to a meeting which took place on 14th April (an MS Teams Meeting) to discuss options available but none were offered up. On the 22nd April another MS Teams Meeting was held to discuss the matter but with no resolution. 

On 27th April the Complainant received an email to contact Dr. Mary Brennan and on 13th May Dr. Mary Brennan referred the Complainant to her Colleague Mary Spillane to help mediate the situation.  On 24th May the Complainant had a Zoom Call with Mary Spillane with no working solution found or with no reasonable accommodation. 

The Complainant felt he had been left with no other choice but to refer the matter to the WRC. He stated all he wanted was a sense of normality again, he had not worked since November 2020 (at the time the complaint was submitted) and found living off €203 a week had been very testing. He stated he had been off work for 6 Months due to his inability to wear a face covering through no fault of his own. He stated the Respondent allowed others to work from home including Tadgh Hanlon and hundreds of his co-workers at Regeneron were afforded the option. The Complainant felt he have been unfairly treated and discriminated against despite his confirmed medical diagnosis of anxiety leading to immense distress, panic attacks and difficulty in breathing and stated the wearing of a mask for more than a few minutes was intolerable and highly distressing for him. 

The Complainant stated he would love if he was able to be able to wear one and go back to work but he physically could not. He stated he did not know why the Respondent insisted on going against governments recommendations on having workers, working from home. He stated in the three weeks leading up to the Cut-off point he was working from home 5 days a week and that 95% of his work could be done remotely. 

The Complainant stated he had engaged in mediation on 3 separate occasions, the two MS Teams calls, first one on his own, the second with his sister as a representative and thirdly Mary Spillane, Workplace Advocate for Mental Health and Workplace Accommodations and all 3 to no avail, with no reasonable accommodation or working solution.   

The Complainant supplied documentation, emails and letters to show the correspondence between Doctors, Myself, HSE Mental Health Services and ICF. 

The Complainant stated he had been treated unlawfully by Discriminating against him, Failing to provide him with a "reasonable accommodation" and Direct Discrimination Contrary to the Equal Status Acts, 2000 — 2015  On the following ground(s): “A Disability  which means 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, 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 a condition, illness or disease which affects a person's thought pro

cesses, perception of reality, emotions or judgement or which results in disturbed behaviour". "Direct discrimination": takes place "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 protected grounds (gender, disability, race, etc). "reasonable accommodation": The Acts define discrimination as including "a refusal or failure by the (the respondent) to do all that is reasonable to accommodate the needs of a person with a disability by providing [or allowing] 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".

The Complainant states that the most recent incident of alleged discrimination is the 27th November 2020, however, the complaint was received by the WRC on the 29th May 2021. We therefore contend that this matter is statute barred. The Complainant has not listed a comparator. We assume any such comparator would be an able-bodied person. in the same position as the Complainant, who declined to wear a mask. 

On the 2 nd May 2017, the Complainant commenced work with the Respondent as an Onsite Support Engineer as a contractor. He was subsequently employed by the Respondent in July 2018. The Respondent is an IT service provider that delivers its service to customers all over Ireland. The Respondent is not directly engaged by it's end users/clients. It is contracted, through another entity (being Unisys) who in turn, is contracted by the end user/client to seek personnel. In regard to the Complainant's situation, the end user was the pharmaceutical company, Regeneron, located in Limerick. Due to this situation, the Respondent was necessitated to enforce any directions imposed upon it by its end users. Due to the fact that Regeneron was a pharmaceutical company, at no time did it cease work as a result of the pandemic. It did allow remote working in part, however, due to the nature of the services being offered by the Respondent to Regeneron, an onsite presence by its personnel was required. As the Complainant's work was on site at a client premises, any directions regarding PPE requirements were issued by that entity directly and the Respondent had no alternative but to adhere to same. 

In August 2020, at a time where there was still no approved vaccines and the presence of Covid was on the rise, Regeneron issued notification that any personnel attending on site had to wear a face covering. On the 6th August 2020, the Respondent formally issued a notice to all its employees, including the Complainant, that effective Monday, August 10th, it will be mandatory for all employees to wear a face mask/covering at all times. 

On the 7th August, John Lynch forwarded on a query to Eoin Brennan by the Complainant regarding his inability to wear face masks as it triggers 'mini panic attacks." He queried as to whether there were any alternatives to this new requirement. On the 7th August, Ms. Erica Dempsey (Onsite Lead) emailed Mr. Lynch and the Complainant. She informed them that EHS have advised, when possible, the Complainant should wear a face covering and that he is permitted to change to the wearing of a visor when he feels uncomfortable. 

Due to the increased threat of COVID- 19, on the 27th October 2020. Robert Fletcher (IT Manager at Regeneron) emailed the Respondent. informing them that the Complainant was no longer permitted to wear a visor and that a face mask must be worn instead. 

On the 28 th October 2020, the Respondent replied stating the Complainant is contesting this requirement for health reasons and has asked whether there are any exemptions to this requirement, Mr. Fletcher responded stating there were no exemptions and that the Client has mandated that visors are not to be used as they provide less protection than the face masks. Ms. Dempsey sent a letter and emailed the Complainant informing him that the use of face visors is no longer permitted. Following on from a phone call with the Complainant, Ms. Dempsey informed him that the Client had no exemptions to the requirement of wearing a face mask. The Complainant requested that he be permitted to work from home until a solution has been made. Ms. Dempsey responded and permitted the Complainant to work from home the following day. 

On the 28 th October 2020, at the request of the Respondent, the Complainant attended his GP, Dr Bernie Lynch. On 2nd November 2020, the Complainant forwarded on, via email, a letter addressed to the Respondent by his GP. The letter set out that the Respondent consider the wearing of a visor for the Complainant as he reports suffering from anxiety when he wears the face mask.

Following discussions by the Respondent's personnel with Regeneron, they were informed that no exemptions were being made and so on the 5 th November 2020, Ms Dempsey replied to the Complainant and stated the Client was making no exemptions to the requirement of wearing a face mask. The Complainant replied by email, stating he cannot wear a face mask and therefore will not be adhering to the Client's (Regenerons) mandatory requirement. 

On the November 1st 2020, Ms. Dempsey emailed the Complainant re-informing him of the Client's no-exemption policy with regard to the 'Nearing of face masks. Furthermore, she informed him that he was to return to work on 16th November 2020 and failure to do so will lead to suspension of duty as the Client will not allow an employee on site without the correct mask. On the 12th of November, the Complainant replied to Ms, Dempsey.  On the 13th November 2020, Ms. Dempsey emailed the Complainant requesting that he attend an appointment with Dr. Alison Sigrist, the Company Doctor. The Complainant duly attended the Company Doctor who concluded that the Complainant is "medically fit for unrestricted work duties" and in her medical opinion, "there is no medical contra-indication to the wearing of a face mask." On foot of this report, Ms. Dempsey sent a letter to the Complainant on the 24th November 2020 with the Company Doctor's medical assessment enclosed. As there was no medical reason for the Complainant's inability to wear a face mask, Ms. Dempsey requested confirmation from the Complainant that he will be returning to work and willing to wear a face mask on the 26th November 2020. She further added that failure to comply will result in the Respondent taking disciplinary action. 

On the 25 th November 2020, the Complainant sent a letter to Ms. Dempsey in relation to the Company Doctor's medical assessment. He appears to question the doctor-s level of expertise and re affirms his issues, at this point still not medically identified. 

On the 26 th November 2020, Ms. Dempsey sent a letter to the Complainant informing him that he has been put on sick leave in light of the fact that he is not capable of wearing a face mask on medical grounds. Ms. Dempsey emailed the Complainant on the 1 8 th December 2020 to get an update on how he was doing as she was unable to contact him by phone. 

In Apri1 2021. Dr. Mary Brennan sent a letter to Ms. Dempsey of the Respondent, averring to the Complainant's long-standing history of anxiety disorders. She advised in light of the Complainant's medical condition, it makes the wearing of face mask beyond a few minutes intolerable for the Complainant and she seeks that the Respondent reconsider extending the facilitation of full time work from home as an option for the Complainant or, for example, if on site, working in isolation.

On the 9 th April 2021, Mr. Tadhg Hanlon (Senior Customer Service Manager) sent a letter to the Complainant in which he informed him that an alternative role could not be sourced, despite their attempts, as all of the Respondent's Client's sites insist that all workers on site wear face masks in line with Health and Safety regulations. Given the Complainant's absence from work since 8 th December 2020, Mr. Hanlon invited the Complainant to a meeting on the 13 th April 2021 and added that he was entitled to bring a person with him in attendance. 

On the 14 th April 2021, a meeting took place with Mr. Hanlon, the Complainant and Mr. Roche (note taker) in attendance. 

On the 19th April 2021, Mr. Hanlon sent a letter to the Complainant requesting confirmation of the minutes from the meeting dated the 16th April 2021. Mr. Hanlon further sought confirmation of a follow up meeting with the Complainant. 

On the 22 nd April 2021, the Complainant engaged in a meeting via telephone with Ms. Burke, Mr. Hanlon and Mr. Roche (note taker). 

On the 30th April 2021, Mr. Hanlon sent a letter to Dr. Brennan informing her that the Respondent's Client is unwilling to allow the Complainant to work from home on a full time basis as his role requires him to be on site regularly. Mr. Hanlon requested Dr, Brennan to put forward alternative solutions for this situation as they have not found yet an alternative solution for the Complainant. 

On the 6th May 2021. Ms. Dempsey emailed Eoin Brennan, Associate Director EHS and Security at Regeneron Ireland DAC, requesting an update on the requirement to wear a face mask on site at Regeneron. On the same date, Mr. Brennan replied stating there had been no lifting of the requirement and it is unlikely that there would be any change in the foreseeable future. 

On the 24th May 2021, Ms. Dempsey emailed Jack Bonacci of Unysis. She forwarded on the Complainant's doctor's request as to whether the Client would grant the Complainant an exemption to work from home on a full-time basis or until such time as the mask policy changes. On the 4th June 2021 Gregg Garguilo, also of Unysis emailed Ms. Dempsey. He stated that "having passed the request on to the Client, the Client has responded and are unable to allow the Complainant to work from home as staff are in the midst of returning to office. In addition, there is a service desk that provides Ll and L2 support that covers majority of the work that can be completed remotely and therefore, require other employees to be on site. Furthermore, the Client cannot offer alternative accommodation to the Complainant as there is already space shortages on site". It is at this juncture. that the Complainant lodges his claim with the Workplace Relations Commission. This said complaint was received on the 29 th May 2021. 

In regards to a claim under the Employment Equality Acts, the Complainant must establish a prima facie case. This requires the Complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is the Respondent's case that the Complainant has failed to establish the existence of a prima facie case in accordance with Section 85A( l) of the EEA. 

The Respondent referred to the decision Melblll)' v Valpelers EDA/0917, wherein it is stated that this section: "places the burden "establishing the primary facts fairly and squarely on the Complainant and the language this provision admits Q/' no exceptions 10 that evidential rules". In other words, assertions cannot be mere speculation or be unsupported evidence. 

Section 2 of the Employment Equality Act, 1998 defines ' 'disability" as;

'(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,

the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

the malfunction, malformation or disfigurement of a part of a person's body,

a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour."

The Respondent submitted that the Complainant's contention that he suffers a disability does not meet the definitions provided for under the Act. The Complainant reports that he experiences symptoms of panic, as per the Company Doctor Report, however, he has produced no such evidence that mask wearing causes this issue. 

It is the Complainant's contention that he was discriminated against by virtue of the fact the Respondent required him to wear a mask as per its Client's and the Irish Government's Health and Safety requirements. However, the Respondent contends no such medical evidence was supplied to the Respondent verifying the grounds of disability which the Complainant contends. The Report of the Company Doctor succinctly states that 'there is no medical contra-indication to the wearing of a face mask." It is common case for any complaint of disability discrimination, that the complainant adduces medical evidence to support his or her complaint of discrimination. In this instance, the Respondent stated the Complainant had failed to meet this threshold. Whilst the Complainant has attended the Company Doctor for an assessment, he is seeking to rely on the finding of the doctor that there are ' 'non-medical barriers to wearing a face mask for prolonged periods." This is clearly distinct from medical evidence. The Company Doctor did not submit that the Complainant should be exempt rather, she recommended coping strategies in an attempt to overcome his fears of wearing a mask. By virtue of these facts, we state that the complaint of discrimination must fail. The Respondent referred to the decisions in Carberl.w v T. Huiginn & A Conducht Teoranla T. (T Ili ins Co. Ltd. AD.J-00032055 and Lvttle v Buy J'Vise Discount Stores Costcutler North Strand which deal with the issue of masks and the requirement to provide supporting medical evidence when alleging it impairs upon an individual's ability to breath.  In Kamil .Jan0H'icz Ridge Tracling Ltd, t/a/Regan's Supenalu Firhouse Kamil .Jancnvicz v Ridge Trading Ltd, l/a/Regan's Supuwalu Firhouse [2022/ ADJ-00032292, the complainant refused to wear a mask while at the respondent's store on the grounds that he suffered a disability. The complainant did not have any medical evidence that he was exempted, and he did not provide any details other than a piece of paper which said that he ' 'is suffering from Asthma" and that 'patient does not tolerate mask. " The adjudicator was not satisfied that his evidence met the requirements in the Equal Status legislation. Akin to the present case, the evidence submitted by the Complainant is insufficient to fall within the definition of disability discrimination under the Act. 

The Respondent is a stranger to this complaint. The Respondent submits that the requirement to provide reasonable accommodation under Section 16 of the EEA does not arise in circumstances where the Complainant at all times was fit to engage in work. Therefore, the obligation to implement "appropriate measures" is not required. In support of the foregoing, the Respondent referred to the decision in Humphries v Westwood Fitness Club, Dunne J [2004] 15 ELR 296. Here the Labour Court held when determining the extent of the obligations under Section 16 of the EEA, regard should be had to the medical evidence before the employer when assessing the employee's capacity and the level of impairment faced by the employee. In consideration of this point, the Respondent submitted the medical evidence before the Respondent at no stage indicated that for medical reasons he is incapable of wearing a face mask. The fact was, the Complainant was at all times fit to work. 

Without Prejudice to the above, the Respondent submitted that alternative accommodation had been considered. A possible transfer of the Complainant had been considered to another site of the Client's including Limerick and Cork. Despite this consideration, this would ultimately not change this situation since it was mandatory for employees to wear face masks on all sites. It was also discussed as to whether the Complainant could work remotely full time. This was again discounted by the Respondent's client, as it was felt that an onsite presence was requested in line with the rest of the team. Further, it was investigated as to whether the Complainant could work in isolation at the client's premises, however, the Respondent was informed that due to shortage of space, this was not possible. In addition, the Complainant was invited by the Respondent to attend meetings on the 15 th , 21 st and 25 th of June 2022 to discuss the matter but refused to attend. 

Notwithstanding and without prejudice to the foregoing, in the event the Complainant is deemed to have a disability and adduces prima facie evidence that he was treated differently against by the Respondent, the Respondent submitted that such alleged treatment constitutes a form of indirect discrimination by virtue of the fact it was an occupational requirement that applied to all workers. Further, the clients who the Respondent's business service are pharmaceutical companies who, due to the nature of their work, had a higher threshold of infection prevention in order to allow their business to operate throughout the pandemic. 

To that end. the Respondent submitted that the Client's business (together with every organisation in Ireland) was mandated to implement measures to combat the spread of CO VID- 19. The requirement to wear a face mask was universally' applied by the majority of businesses who required onsite workers and was deemed an absolute minimum requirement for over 18 months across Ireland. As such. it is the Respondent's contention that the requirement to wear face masks constitutes a genuine and determining occupational requirement so as to limit infection rates within the organisation. Furthermore, the Respondent deemed the measure itself is be both legitimate by virtue of the national guidance at the time as well as proportionate given the minimum impairment on the workers autonomy. 

In consideration of the foregoing, the Respondent denied any discrimination occurred..

The relevant sections of the Law have been cited above by both parties in their submissions.

There are a number of sequential issues for decision in a discrimination complaint. Firstly, is the complaint in time or statue barred. Secondly, did the Complainant have a medical disability. Thirdly, has the Complainant set out a Prima Facie case of discrimination where the burden of proof passes to the Respondent.  It is only at that point does the detail of the alleged discrimination and the issue of reasonable accommodation come into play. 

An initial complaint was received by the WRC in May 29th 2021. While the Complainant did not (he stated due to technical difficulties) utilise the normal complaint form this does not invalidate his complaint. However, a more detailed complaint was submitted to the WRC on July 5th 2021 but signed as of May 26th 2021. In that form the Complainant stated the last day of discrimination as November 27th 2020, thus bringing the complaint under statue by one day. The Respondent objected to my jurisdiction to hear the case as it was alleged it was statue barred by being received outside the six month time limit for submission of complaints. Having read both complaint forms I give the Complainant the benefit of the doubt and decide therefore the Complaint is not statue barred. The Complainant had also the option of applying for an extension of time to 12 months and while not exercised, if approved, would have brought the claim into time. The Complainants employed has ceased with the Respondent and he is now working elsewhere from home remotely. 

The circumstances in this case is the customer who the Respondent worked for did not allow any employee work on site without wearing a mask and this rule applied to both the Respondents employees and the Customer employees, without exception.  The customer was a Pharmaceutical company and this necessitated strict and mandatory use of face masks. The Complainants contract of employment required the Complainant to work at that specific site.  The Complainant did not provide any other comparator who was allowed work on the customer site without a mask.  The Complainant submitted a medical certificate which stated “he had a long standing history of anxiety disorders although managing well until his obligation to wear a face covering ….he experiences immense distress related to the feeling of difficulty breathing which has in fact, in the past, being a particular trigger for him”. The relevant disability definition in the act is “diagnosed

a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”. One could assess this situation either way. I do note that the Complainant describes his condition, in correspondence with the Respondent, as a “Phobia”. Equally I note the company doctor stated “there were no medical barriers to wearing a face mask”. The medical condition as described and outined in the various medical assessments could be covered by the disability definition or not. I could spend pages on assessing the merits of each course.  Either way I do not assess it as being critical to the situation as the issue significantly stands or falls beyond that and I give the Complainant the benefit of any doubt by accepting his situation as a disability based on the above definiton, although I do not in any way wish to define his situation as meeting the medical definition of a disability. I am not qualified to make that decision.   

The Prima Facie test and the burden of proof that a complainant must establish to give rise to the presumption of discrimination has been extensively dealt with by the  Labour Court, a frequently referenced case is Mitchell v Southern Health Board [2001] ELR 201 where the Court detailed what constitutes presumed prohibited conduct also referred to as a prima facie case “claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.” And in Cork City Council v McCarthy [EDA 21/2008] elaborated further on what this meant “At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”. 

The evidence submitted that very clearly the customer Site Head had mandated that visors were not to be used on site and that a face mask was mandatory and there were to be no exceptions. Equally the option to work remotely was explored by the Respondent and this was not acceptable to the customer and it seems to other team members.  In reviewing the evidence of the Complainant he has not named any acceptable comparator, without a disability, who was allowed by the Respondent to work at the site without the wearing of a mask or some limited use, he has not named any employee of the Customer (although a stranger to this complaint) who was allowed work without a mask and the staff members of the Respondent doing similar work all returned to work at the customer base and wore masks. The Complainant named two Managers who were allowed work from home but these staff are not “comparators” as they do a vastly different job to the Complainant (they are members of management covering many different customers and their on site presence was not essential or demanded by the customer and when required to visit the site were in a position to wear masks).  The option of trying to provide a self-contained office area for the Complainant on the customer site was explored by the Respondent but the customer was unable to accede to this request due to space limitation issues. The Respondent gave evidence of looking at other alternative locations for the Complainant but none were available (all required the use of a face mask at the time) and the Complainant offered none as a solution or option at the time the issue arose. My conclusion is the Complainant has not established a prima facie case of discrimination, he has not shown that the Respondent acted in a discriminatory manner towards him, has named no comparators who were treated more favourably than him, that his exclusion from the customer site was not decided upon by the Respondent but by the needs of the customer being a pharmaceutical plant to try prevent the spread of Covid  and indeed in some of the correspondence he accepted that the customer was operating a “no exemption” decision to the wearing of a face mask.

Based on the above findings I find that the Complainant was not discriminated against and his compliant fails.

Discrimination