Complainant

Respondent

Parties

Brendan  Gill

LMETB (Louth Meath Education & Training Board

Complainant

Respondent

Representatives

Self-Represented and assisted by nominated Representative, Ms E Flynn

Ms. MP Guinness BL instructed by Ms N Diskin, Solicitor,  Eversheds Sutherland

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-00040982-001

13/11/2020

The issue in contention concerns an allegation by a Teacher that he was subject to Discrimination by the LMETB in regard to his Disability. (He was an Asthmatic and Medically exempt from wearing Covid Face Masks.) He alleged that he was Discriminated against on the Disability Ground by being refused Reasonable Accommodation and Harassed by the Respondent Employer.

The Employment began on in November 2008 and continues.

The rate of pay, at date of referral, was € 2,154 Gross per fortnight for a 22-hour week.

(As a matter of convenience Ms. F from the LMETB is referred to as the “School Principal” although she carries a different LMETB title.)

Opening Legal Point: Time Limits – Reckonable Period

The Complainant, in his Complaint form, stated that the “most recent day of Discrimination” was the 15th September 2020.  There was a considerable amount of Complainant written material submitted that concerned matters post that date. The Respondent Representative, Ms. Guinness, strongly contended that only matters in the six months prior to the 15th September date could be considered at Adjudication.

After some detailed debate it was accepted that the Adjudication would not consider events post the 15th September 2020.

The Complainant presented a detailed written submission supported by an extensive Oral Testimony. He was cross examined in depth by Ms Guinness for the Respondent.

1:1       Opening Background.

The Complainant has a long-standing serious Asthmatic medical condition. Medical evidence was presented in support. This precluded him on medical grounds, from wearing a “Covid” Face Mask or a Face Shield. (The Employer OH Advisors Medmark confirmed this diagnosis)

The Complainant had made the Employer/ LMET Board aware of this situation in late August. He had mistakenly believed that this was accepted and there would be no incidents in relation to this Non-Wearing of Masks. The Medical Exemption was allowed in SI 296 of 2000 under the Health Act of 1947.

However, when School resumed for the Autumn term a number of (two) incidents took place that seriously impacted, most negatively, on the Complainant.

These were referred to as Incident I and Incident 2.

1:2       Incident No 1

On the morning of the 15th September 2020 the Complainant was involved in a loud heated discussion/altercation, regarding his non-wearing of a facemask, with two School Caretaker colleagues, Mr. D and Mr. E. It was alleged that Mr. E had used strong and abusive language to the Complainant. The Complainant withdrew from the confrontation and as he walked away the School Principal, Ms. F, asked what had taken place. She had heard the shouting from her office. The Complainant asked her to speak to Mr. E regarding his language and behaviour. Initially Ms F was not supportive but later in the day apologised for her lack of support. At the time of the morning incident the Complainant, on reflection, decide to go back to where Mr. E was standing to make it clear to him that he, the Complainant, was not going to make any formal complaints. Matters got heated again and further strong language ensued from Mr.E.

In summary the Complainant felt that he had not been properly supported by School authority figures such as Ms F. He was very fearful that the unchecked behaviour of Mr. E would become common practice towards him among staff. He felt that he was being made a pariah and suffered extreme stress reactions. He stopped taking his lunch in the Staff Room and effectively became isolated in an atmosphere that was cold and hostile toward him. Most of this took place post 15th September 2020.

1:3        Incident No 2

On the morning of the 14th September the Complainant was teaching a class in very large class room. As there was plenty of physical space he allowed the two students to take off their face masks as they were well distanced from each other. He had occasion to go to another room for some teaching materials. In this room the Principal Ms. F, accompanied by Ms O’B, entered very aggressively and berated him for allowing the two students to take off their masks. He replied that it was an innocent mistake and he had mistakenly followed Teacher’s Union of Ireland guidelines. Ms. F was aggressive and had acted unreasonably in a situation where a normal discussion could have achieved a positive outcome.

The Complainant was shocked and went home in a most upset manner. He resolved to speak to Ms. F the next day regarding her manner. The following day Ms. F apologised for her approach.

1:4        Summary

In addition to the completely inappropriate manner and frankly Discriminatory steps taken by the Board regarding Incidents 1 and 2 the Complainant queried how the overall Covid policy of the Board had been designed.

He felt that a proper Risk Assessment regarding, among other matters, the Wearing/Non-Wearing of Mask /Face Visors had not been carried out by the Employer.

He also had serious queries about how the Dignity at Work Policies of the Board had been carried out in his case. Comprehensive documentation in relation to these issues as submitted in evidence.

In conclusion he stated that he had a Disability -severe asthma and no proper recognition was taken of this. He had been denied a proper Reasonable Accommodation in regard to his inability to wear face mask and had been subject to serious Harassment.

The Respondent presented a detailed written submission supported by an extensive Oral Testimony from a number of witnesses principally, Ms F, the School Principal.

2:1        Background.

The incidents referred to have to be seen against the backdrop of the Covid epidemic which was raging in the Summer of 2020. The Government had decided to allow Schools to reopen in September 2020 subject to very rigorous Health and Safety anti Covid rules and procedures.  The School had held a very comprehensive Staff meeting in early September prior to students physically returning to class. The Complainant had attended and contributed. The guidelines of the Department of Education, the HSE and School Governing Bodies had been referenced and a detailed policy had been put in place. Among the measures was a mandatory requirement that face masks be worn throughout the School without exceptions.

It was recognised that the Complainant had a medical exemption from face mask wearing but it had been hoped that he might wear a Visor as an alternative. The Complainant had declined this on medical grounds.

On the School reopening the atmosphere was tense and Staff were in general very fearful in what was then a very uncertain environment as regards Covid.

The incidents referred to had to be seen in this light. Both had taken place in the very early days of a new Term.

2:2         Incident One and Two 

In regard to incident No One involving the Caretakers on the 15th September, it was accepted that a loud verbal altercation, a shouting match, had taken place involving mainly Mr. E and the Complainant. Ms. F in her evidence had recalled that she had heard loud voices and had told all involved to take a step back – to “cool it” so to speak. Mr E did not directly report to her and she would have had to go to his superiors with any complaints. It was a difficult time and a lot of Staff were possibly fearful and anxious regarding the Complainant not wearing a mask. Mr. E had possibly gone a bit too far but while absolutely inappropriate it was not completely unexpected. She felt that she had calmed things down. She had told the Complainant not to go back near Mr. E for a while. The Complainant going immediately back was not going to be helpful. It was not and had exacerbated the situation. Later she felt that things had passed over. She most certainly did not apologise in any shape or fashion to the Complainant for any of her actions that day.

Incident No Two which had happened the previous day had been a straightforward Management issue. The agreed Policy was mandatory face masks and the Complainant was not following through properly by allowing students remove masks. She had spoken to him in the second-class room to remind him of the agreed Policy but not in any aggressive or berating manner as alleged. She did not have to apologise to him as there was nothing to apologise for.

2:3           Summary

The incidents referred to were not exceptional and the Respondent Representative Ms Guinness clearly stated that they did not fall into any agreed definition of Discrimination. As regards Reasonable Accommodation the Board had allowed the Complainant to attend School and not wear a face mask on medical grounds. It was hard to see any other or better Accommodation.  In relation to other allegations, the Board had followed the best available Public Health advice and there was nothing there to ground a Discrimination claim.

A complaint of Discrimination under the Employment Equality Act,1998 required a prima facie case to be established and extensive Legal precedent was quoted in support. “Mere assumptions”, a Labour Court phrase, did not amount to proper evidence.

Overall the case lacked any sound evidential basis to bring a complaint under the Employment Equality Act,1998 and had to be seen as not properly founded.

3:1        Legal issues / Applicable Law /Definitions – Reasonable Accommodation.

The complaint is referred under the Employment Equality Act,1998 on the ground of Disability leading to Harassment and Failure to Provide “Reasonable Accommodation”.

Under Section 85 A of the Act, as set out below, the initial test is for a Complainant to establish a “presumption of discrimination” and once established it is for the Respondent/Employer to rebut the claim.

Burden of proof.

85A

85A.—(1) 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.

(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 a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In this case therefore the opening questions have to be

1.       Did the Complainant have a qualifying disability?

2.       If so was he afforded Reasonable Accommodation as defined in Section 16(1) and (3) of the Act.

3.       Did he suffer Harassment as defined in the Act?

Using these questions as a guideline the evidence presented both Orally and in Writing has to be examined.

3:2        Consideration of the Evidence

3:2:1        Qualifying Disability?

Section 2 -Definitions defines Disability

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;

In this case there was no doubt and it was accepted that the Complainant had a severe asthmatic condition (GP and Medmark medical reports). Taking the definition above it was clear that he qualified as having a Disability.

3:2:2         Reasonable Accommodation?

Section 16(1) to (3) refers - set out below.

Obligations of Employers etc.

Nature and extent of employer’s obligations in certain cases.

16

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.

F33[(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;

In this case the Oral Testimony from both Parties was that the Complainant was allowed to work without a Mask - effectively as per the Legislative requirements of SI 296 of 2000 under the Health Act of 1947.

It is hard to see, from an Adjudication point of view, what other Reasonable Accommodation could have been provided. The School had a full suite of Covid 19 Protocols in place, mandatory mask wearing save for medical exemptions, Hygiene practices etc. It was still very early days back in School for all Staff.

The Adjudication conclusion has to be that Reasonable Accommodation was provided certainly up to the date of the 15th September 2020.

It has to be noted that in line with the opening Legal point of Recognised or “cognisable” Time limits much of the Complainant’s evidence referred to period post the 15th September and could not be considered.

3:2:3          Harassment of the Complainant / Incidents One and Two

Section 14 A (1) & (7) refer

Harassment and sexual harassment.

14A

14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Taking Incident One – The “Caretaker” incident for ease of reference – it appeared clear that a verbal exchange took place with caretaker, Mr E. It was alleged that Inappropriate language was used by Mr. E. In her Testimony the Principal, Ms. F, stated that she had told all involved to step back and loud arguments at a Photocopier were not part of a good workplace. The actions of the Complainant in going back to Mr. E for what effectively became “Round Two” were certainly not helpful. Ms F contended forcibly that she had told the Complainant to leave Mr E alone and not go back.

The Legal precedents regarding this area are varied. It is discussed in Employment Equality Law by Bolger, Bruton and Kimber, Round Hall 2012 at Page 296 Section 6-125 to 6-135.

Taking a view across the range of cases, (a good number of which involve Schools/Teachers,) cited by the Authors it appeared that Verbal harassment, while serious and egregious, really required to be part of a prolonged pattern. It was also noted that quick management action to stop matters was also a reasonable defence.

We have to remember that we are only talking about one incident here -on the 15th September 2020.

Much was alleged about matters post that date, but these cannot be considered.

On Adjudication balance and having considered all the evidence especially the Verbal Testimony, the Adjudication conclusion has to be that the verbal exchanges with Mr. E, while unpleasant, did not constitute a pattern of deliberate Harassment or ongoing Harassment. Ms. F appeared to have defused matters quickly.

The Adjudication conclusion has to be that No Harassment, as defined in Section 14 of the Act and discussed in legal precedent, took place as regards Incident One -the “Caretaker” issue.

Incident Two, the Student Masks on/off situation was verbally strongly disputed. Ms. F was of the view that nothing more than a normal Manager /Employee exchange took place. She very strongly contested the view that she had “Barged in Aggressively” and certainly had never felt the need to subsequently Apologise, as claimed by the Complainant. In her recollection the exchange had been amicable if Managerial in tone.

The issue of Apologies, alleged made by Ms F to the Complainant on three occasions, became a hotly disputed topic.

In a major difference of opinion, the Adjudication Officer has to take a considered view of the evidence and the witnesses presenting it. On balance the view has to be that Ms. F has the balance of probability on her side. The conclusion has to be that No Harassment or Discrimination took place, as defined by the Act, in Incident No Two.

3:2:4      Oher areas of Complaint

As noted above much of the evidence, especially the written materials supplied, referred to events post the 15th September 2020. As such they are outside the jurisdiction of this Adjudication.

3:3        Final Adjudication conclusion.

The events related in this complaint referred to the first days of a back to school programme following the shut downs of early 2020. It was clear that tensions and personal fears were high on all sides as no one really knew what they were facing into. There really was no Template for the School Management save the Covid Policies as set out by the HSE and other Higher Educational Authorities.

The issue of a staff member not wearing a Mask in heightened climate was problematic for all sides. It quite feasibly was not adequately foreseen, and events post the 15th September of Staff Notices etc seemed to have addressed most of these issues.

However, the Complaint before the Adjudication, as pointed out strongly and repeatedly by Ms. Guinness BL, for the Respondents, concerns events between late August and prior to and on the 15th September 2020. This was realistically a very short time frame.

Having carefully reviewed all evidence, both Written and Oral, the Adjudication conclusion has to be to be that no Discrimination took place in the relevant time period up to the 15th September 2020.

The Complaint is not well founded and has to fail.

Employment Equality Act, Discrimination, Wearing of Masks, Reasonable Accommodation.