Complainant

Respondent

Anonymised Parties

An Outpatient

A Hospital

Representatives

  Disability Rights Network Ireland

Sarah Daly BL instructed by Ronan Daly Jermyn 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-00044380-001

27/05/2021

The Complainant submits she has a disability, namely Post-Traumatic Stress Disorder (PTSD), and claims that she was subject to prohibitive conduct by the Respondent in contravention of the Act. She submits that due to her disability she cannot wear a mask and that the Respondent’s insistence on mask wearing, in effect, denied her access to health services. She argues that this was discriminatory in contravention of the Equal Status Act 2000, as amended, (hereinafter ‘The Act’). The Complainant submits that the discriminatory treatment in question was both harassment in contravention of section 11 of the Act, and also a failure of the Respondent to reasonably accommodate her disability, in contravention of section 4 of the Act. The Complainant is seeking a compensatory sum as well as a recommendation that equality training be undertaken by the Respondent’s staff members.

The Respondent denies it engaged in discriminatory treatment as defined under the Act. The Respondent has seen no proof of the Complainant’s purported disability. Should it be found that the Complainant has a disability, the Respondent submits that it did all that was reasonable to accommodate the Complainant and did not engage in harassment or in any other prohibited conduct under the Act.

Preliminary Issues:

Two preliminary issues arose regarding the (1) complaint of harassment and (2) The cognisable period for consideration of the complaints. 

Harassment:

The Respondent took issue with the fact that the Complainant was now claiming harassment under section 11 but did not indicate this specific complaint in the original Complaint form. A check showed that there was no indication as to complaint on this form. The question then arose as to my capacity to allow the claim of harassment to be adjudicated upon. It has long been established that the original WRC Complaint form is not a legal binding document. However, the question then arises as to would the Respondent be taken by surprise at this hearing, or be otherwise prejudiced, if there was an addendum to the complaint under the Act. I find that this was not case. The ES.1 form received by the Respondent in February 2021 clearly referred to alleged harassment by employees of the Respondent; the secretary to the Complainant’s consultant (hereinafter ‘Ms A’) and the Respondent’s Risk Manager (hereinafter ‘the RM’). I find therefore that a complaint of harassment was legitimately, and in a timely manner, notified to the Respondent.

Cognisable Period:

The Respondent indicated that the cognisable period for the alleged prohibitive conduct was described in the complaint form as 1 February 2021 and the most recent date of discrimination indicated as 27 May 2021, the date of submission of the form.  Th ES.1 form further sets out the Complainant’s response to the question on the date of unlawful treatment as the morning of 1 February 2021. This became an issue because the Complainant in her submission referred to alleged incidences in January 2021 that were not referred to in the complaint form nor in the ES.1 form. I am satisfied that there was a clear declaration by the Complainant, made on two days, 1 February 2021 (ES.1 Form) and 27 May 2021, (the date of receipt of the Complaint form by the WRC) that the Complainant’s position was that she did not consider any prior date before 1 February to be an issue for investigation. Furthermore, any investigation by me of any prior alleged incidents would plainly prejudice the Respondent who had been notified otherwise of the alleged discriminatory act as per the obligatory notification provisions at section 21 of the Act.

Furthermore, I cannot investigate alleged incidents that occurred at least three months after receipt of the complaint, which were alluded to in the Complainant’s submission. Therefore, I find that the cognisable period for investigating discriminatory treatment to be between 1 February 2021 and 27 May 2021.

The Complainant gave evidence that she suffers from PTSD because of an incident in her childhood. She described the debilitating effect it has on her day to day life but particularly in relation to the panic she feels in restrictive situations, for example, when undergoing an MRI scan and when travelling by airplane.  During the Covid-pandemic restrictions she received a note from her GP, which was exhibited, which declared that she was not able to wear a mask for medical procedures due to an underlying medical condition.

The Complainant is a cancer survivor and was receiving ongoing monitoring at the Respondent’s facility. The Complainant gave evidence of being harshly treated when scolded by a nurse at reception in a previous visit on 12 January 2021, for not wearing a mask.

The Complainant gave evidence of being contacted on 1 February 2021 on the phone by the secretary of the consultant, Ms. A. The Consultant had planned to do an urgent investigation for the Complainant to check for a potential cancerous growth. The Complainant explained that the appointment was urgent and that she was very concerned about the treatment. She needed the appointment before her surgery which had been scheduled for the 4 Feb 2021. The Complainant was told by Ms. A that she needed to wear a mask for the medical procedure.  The Complainant felt humiliated and harassed by this behaviour and submits that the Respondent did not make reasonable accommodation for her disability.  

The Risk Manager (RM) of the Hospital contacted her by phone later that day. The Complainant relates that the RM demanded to be told the nature of her disability over the phone. The Complainant refused to reveal this detail as she felt it was a private matter between herself and her medical adviser. She asserts that that the RM spoke to her in a cruel and humiliating manner which she contends amounts to harassment under the Act.  

On 2 February 2021 the Complainant was contacted on the phone and was invited to a pre-op Covid test. The Complainant was told that she would have to wear a mask for the Covid test. The Complainant explained that she was exempt. She also said that she obviously would need to take the face covering off for the test to be administered. She suggested doing the test outside in her car, as was happening in outdoor testing centres around the country. This request was rejected.

The surgical procedure was cancelled. The Complainant was humiliated and scared. She knew that the surgery was urgent and that it was potentially life-saving treatment.

Cross-Examination:

The Complainant accepted in cross-examination that the planned surgical procedure was not ‘time critical’. She denied that she had abused the RM in the phone conversation of 1 February 2021. She saw no point in contacting the RM regarding his response in the ES.2 form on the suggestions of reasonable accommodation that he had made.  She did not deny that she had worn a type of scarf covering her lower face when attending the Respondent’s facility in January 2021.

Evidence of the Complainant’s Representative:

Evidence was taken from the Complainant’s representative because she had made representations to the RM by telephone on 1 February 2021. Alleged statements she had made on behalf of the Complainant were referred to in the Respondent’s submission. The Representative denied that she had been hostile or in any way nor abusive to the RM on the day in question but had instead pointed out to the RM what she perceived were the serious shortcomings in the treatment of the Complainant.       

The Respondent’s case is that in accordance with its internal Covid-19 response plan at the time of the incident complained of, all patients were asked to wear a protective face covering during attendances at the Respondent’s facility. The Respondent advises that when the Complainant notified the Respondent that she was unable to wear a face mask, the Respondent attempted to engage with her to discuss alternative options to allow her to safely undergo the surgical procedures but that the Complainant and her representative became irate to the point where constructive engagement was not possible.

The policy of the Respondent in combatting Covid-19 was regularly updated to take account of NPHET guidance, government regulations and developments with the Covid-19 virus itself. The regulations at the hospital were at Level 5 at the time of the incident, which was at a time of significant peak following the Christmas 2020 period. At this stage the vast majority of the Respondent’s staff were unvaccinated.

Summary of the Evidence of the Risk Manager (RM);

The RM was advised by Ms. A that the Complainant was unable to wear a face mask. The RM contacted the Complainant by phone for the purpose of explaining the hospital policies to her and ascertain which safety measures could be implemented to best protect patient and staff safety. He stated that he had beforehand consulted with the Complainant’s consultant as well as the hospital’s consultant microbiologist. The advice he received was to check the extent of the accommodations required as well as being advised that the only practical option was to check if the Complainant could wear a face visor/shield. He was advised by the medical professionals cited that if the Complainant was medically unable to wear a face visor or some other shield, the Respondent could explore additional options such as performing the surgery after hours/at a weekend to minimise risk to staff and patients, albeit at significant extra cost to patients.   He was also advised that the surgical procedure planned for the Complainant was not ‘time critical’.  

In the telephone conversation the RM introduced himself to the Complainant and explained the purpose of the call before enquiring if the Complainant could wear a visor during attendance. The RM states that the Complainant became aggressive and hostile and accused the RM of harassing her. He terminated the call after approximately 2 minutes because the Complainant would not disclose her disability, nor would she engage with him on the reasonable accommodation that could be provided regarding an alternative to a face mask.

The Complainant gave further evidence that the Complainant’s representative rang him later that day but that she was equally hostile and stated that the Respondent had breached the constitutional right of the Complainant not to wear a face mask and that legal action would be taken against the Respondent.  The RM stated that he wished to ask about the nature of the Complainant’s disability, so as to seek to reasonably accommodate her, but was told it was none of his business and that he was only ‘someone from admin’. He said he also had to terminate this call because of what he claimed was the abusive manner of the representative. 

Legal Argument;

The Respondent submits that the test for a ‘disability’ is a distinct test from a medical condition per se that and that this distinction was clearly shown in the following cases cited by the Respondent: ADJ-00032493, ADJ-00032638 and ADJ-00033635. In this instance case the Respondent submits that the Complainant has not shown medical certification of disability therefore she has not established a prima facie case.

The Respondent asserts that if it is the case that that the Complainant has a disability then the Respondent accepts that it would have been obliged to comply with the relevant part of section 4 of the Act which compels the Respondent  “…to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment of facilities”. The Respondent contends that when the RM attempted to engage with the Complainant to explore what alternative arrangements could be made, he was met with an aggressive and hostile response from the Complainant.

The Respondent further contends that on receipt of the ES.1 form, the RM immediately prepared a written response explaining the hospital policies and advising that an alternative process could be put in place. The Complainant, notwithstanding that she had the necessary information, refused to engage. The Respondent submits that the Complainant subsequently showed that she could tolerate a face visor in subsequent medical procedures at the hospital.    

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 under 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.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

The Complainant must therefore first establish a prima facie case of discrimination, in a twofold process that: (1) she has a disability and (2) she was subject to discriminatory treatment. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act i.e. that she has a disability, is not enough in itself to establish a claim of discrimination. As per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred, namely in this case that she was harassed and not afforded reasonable accommodation, as claimed.

Establishing ‘Disability’ under the Act:

The Complainant submitted a medical note from her G.P. dated 26 November 2020, to the effect that she could not wear a mask due to an underlying condition. The Respondent cited previous Workplace Relations decisions where such notes, absent of other corroborating evidence, did not suffice as proof of disability. The Complainant gave evidence that she believed that such was the stigma around her condition of PTSD, that the GP note required  did not mention her specific condition. The Complainant gave convincing evidence of her experiences with PTSD from childhood, as well as describing in detail the effects of that condition her everyday life.  I am satisfied, on the balance of probabilities, that the symptoms she described, together with G.P.’s certificate of 26 November 2020,  fulfil the definition of disability under section 2 of the Act at (e) where it describes “… a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour. Therefore, I find that the Complainant suffered from PTSD on the relevant dates in February 2021.

The Complainant submits that she firstly was subject to harassment under section 11 and secondly, was not afforded reasonable accommodation for her disability under section 4 of  the Act.

Harassment;

Section 11 (1) of the Equal Status Act states-

‘A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim— (a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person’

Section 11 (5) defines harassment as -

‘Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her’

In terms of establishing harassment, I must examine the actions or the reactions of the Complainant, and the alleged perpetrators, in order to determine whether the complaint is held up.  The Complainant in evidence stated that the attitude of Ms. A and the RM in phone conversations on 1 February 2021 in insisting on her wearing a mask, constituted harassment which left her feeling humiliated.  The Complainant accepted that she did not disclose the nature of her disability to either party. The RM in evidence said that the matter had been elevated to him by Ms. A but that he found the Complainant to be uncooperative and quite hostile to him in his conversation with her on the phone in his efforts to determine the Complainant’s disability so as to make possible alternative arrangements for her. He likewise had a similar experience with the Complainant’s representative later that day.   The Complainant was obviously upset regarding the hospital policy of mask wearing, which was an unprecedented nationwide requirement in medical facilities at an extraordinary time. This requirement understandably created great inconvenience, particularly for those who found it difficult to wear a mask. The imposition of such a regulation does not in itself constitute harassment, but the manner of its imposition must not be arbitrary, offensive or humiliating in any way towards someone with a disability.

On the matter of the phone conversations, I found the evidence of the RM to be more convincing. It was uncontested evidence in this case that neither the Complainant, nor her representative, would disclose her disability to the RM. I fully understand the sensitivity around the Complainant’s disability. It would be expected that in normal everyday discourse e.g. shopping, no further enquiry beyond the G.P.’s note exhibited relating to an unnamed medical condition, would be expected to exempt the Complainant from wearing a mask. However, when one was required to attend at a hospital at the height of the extraordinary pandemic that was Covid-19, it was expected that such disclosure, however sensitive, was a necessary precursor to any medical procedure. Communicating hospital policy and inquiring further on the nature of the Complainant’s disability, by both Ms A and the RM, could not reasonably be described as harassment under the Act in the circumstances described above. The Complainant gave no plausible evidence, beyond an assertion, that she was subject to harassment on account of her disability. The Complainant convincingly stated that she felt she was humiliated but I conclude, on the balance of probabilities, this stemmed from an unwanted, but legitimate enquiry about her disability. Having considered the evidence, I find that the Complainant did not make out a prima facie case that she was subject to discriminatory treatment by nature of harassment, as is required under section 38A 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.

It stands to reason that if a person who has a disability is seeking reasonable accommodation as described under section 4 of the Act, he/she must ensure in the first place that the person expected to reasonably accommodate the person must be aware of the nature of the disability. The evidence as outlined above suggests that the Complainant, nor her representative, did not have an intention of making such a disclosure.

The RM gave cogent evidence that he contacted the Complainant by phone for the purpose of explaining the hospital policies to her and ascertain which safety measures could be implemented to best protect patient and staff safety, including the alternative of opting for a visor instead of a mask.  He gave an account of following the advice of both the Respondent’s consultant microbiologistas well as the Complainant’s consultant before initiating the call. This was to ensure that the procedure was not ‘time critical’ and to be guided on appropriate accommodations that might be made in that context. No evidence was given by the Complainant that she requested reasonable accommodation on the phone and the tone of the interaction, as described by the RM, suggested that the Complainant, and her representative, were more concerned about a perceived breach of legal rights and initiating legal action, as distinct from any request to be accommodated. I am satisfied that the adoption of such a defensive attitude, together with the failure to disclose the nature of the disability, was obstructive to any attempt by the Respondent to reasonably accommodate the Complainant in any planned medical procedure, or any mandatory Covid test. The obligation on the Respondent to reasonably accommodate the Complainant imposed an equal obligation on the Complainant to cooperate with the Respondent’s attempts to do so. I conclude that there was no evidence of reciprocal cooperation by the Complainant in this regard.

For the reasons outlined above, I conclude that the Complainant did not discharge the initial burden of proof as required under section 38A, that she was denied reasonable accommodation in breach of section 4 of the Act.  Therefore, I find that she was not discriminated against by the Respondent.    

CA-00044380-001: For the reasons outlined above, I find that the Complainant did not make out a prima facie case, as required under Section 38A of the Equal Status Acts, 2000-2015, that she was subject to discriminatory treatment on the ground of disability: (1) by way of harassment or (2) that she was not reasonably accommodated by the Respondent. I find therefore that the Respondent did not engage in prohibited conduct.     

Equal Status Act 2000, Reasonable Accommodation, Harassment, Mask Wearing.