ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036820
Parties:
| Complainant | Respondent |
Anonymised Parties | A Care worker | Residential Healthcare Service |
Representatives | Self-represented | Ciara Ruane, Partner Byrne Wallace LLP |
Complaint(s):
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-00048019-001 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00048863-001 | 28/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00048864-001 | 28/02/2022 |
Date of Adjudication Hearing: 26/01/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
At the adjudication, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
In this case. I have exercised my discretion to anonymise the parties on the facts that the Complainant and Respondent presented evidence of a sensitive nature based on the Complainant’s medical condition. I was also conscious that the Respondent provides a direct service that relates to vulnerable adults, and it is in these circumstances that also justifies anonymisation of the parties in this decision.
All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence. As the Complainant is a lay litigant and lodged number of complaints in relation to the Employment Equality Act and did not particularize some aspects of his complaint for each complaint, in the interest of fair procedures I explained the relevant sections of the Act during the hearing. The Respondent had no objection to this.
All of the evidence, submissions submitted have been considered herein.
The Complainant was self-represented and gave evidence.
The Respondent was represented by Ciara Ruane, Partner, Byrne Wallace LLP
The witnesses for the Respondent were the HR Manager of the service.
Background:
The Complainant was employed as a Deputy Team Leader with the Respondent from the 23 December 2017 until the ending of his employment on 21 April 2022. This case is concerned with a complaint that the Respondent discriminated against the Complainant on the disability ground and breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability to ensure that he had access to employment. The Complaint also relates to alleged discriminatory dismissal. The Complaint further alleges that the Respondent treated him unlawfully by discriminating against him by way of Harassment and Victimisation. The Respondent contends that all of the complaints of discrimination, victimisation, and harassment on the grounds of disability contrary to the Act of 1998; alleged failure to provide reasonable accommodation: and alleged discriminatory dismissal are unfounded.
The Complainant confirmed on the date of the hearing that Complaint application CA-00048863 is a duplicate of Complaint application of CA-00048864 therefore he consented to it been withdrawn.
The hearing of the complaints took place by way of remote hearing on 26 January 2023. |
Summary of Complainant’s Case:
CA-00048863 At the outset the Complainant confirmed on the date of the hearing that complaint application CA-00048863 is a duplicate of Complaint application of CA-00048864 therefore he consented to it been withdrawn.
Overview of the Complainants complaints CA-00048864 and CA-00048019. The Complainant submits that his complaints under CA-00048864 alleges that the Respondent discriminated against the Complainant on the disability ground and breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability to ensure that he had access to employment.
The Complainant also submitted that the issues between the parties are related to a requirement the Respondent set that the Complainant wear a face mask in the workplace versus his contention that he has a medical disability which prevented and exempt him from this requirement.
The Complaint also stated that he was discriminated against in being denied access to employment due to that disability and that his requests to work without such a face mask should have been accommodated by the Respondent, his now former employer.
The Complaint also alleged that he was subject to discriminatory dismissal.
The Complaint further alleges that under his complaint CA-00048019, that the Respondent treated him unlawfully by discriminating against him by way of Harassment and Victimisation.
By way of background information, the Complainant submitted that he was employed as a Deputy Team Leader with the Respondent from the 23 December 2017 until the ending of the employment on 21 April 2022.
The Complainant during this time worked for the Respondent whose service provides residential care to persons with physical and intellectual disabilities.
The Complainant advised the hearing that many of the service users to whom the Respondent provides care are people who suffer from both disabilities that range from moderate to severe disabilities.
The Complainant further advised the hearing that during his time employed with the Respondent he worked across a number of locations and up until the point he issued the medical note exempting him from wearing a face mask in the workplace, he did not have any issue of concern with the Respondent.
In explaining further, the type of residential unit, he was placed in the Complainant advised the hearing that the unit was made up of service users which he would categorise as having mid to high range level of disabilities.
The Complainant also stated that in addition to providing care and support to the service users he also had managerial and operational responsibilities which required him to ensure the timely and efficient implementation of policies and procedures of the Respondent.
The Complainant submits that the issues between the parties are related to a requirement that he wear a mask in the workplace versus his contention that he had a medical disability and medical note which exempted him and prevented him from wearing a face covering. The Complainant further submits that his requests to work without such a covering should have been accommodated by the Respondent, his now former employer. The Complainant told the hearing that his issue first arose in this regard after the Respondent submitted a daily questionnaire which was sent to all staff requiring them to complete a questionnaire which if they did not do so may affect their allocation of work. The Complainant added that on the 31 December 2021 he received a text message from his manager, with a request that he complete the questionnaire for the following day.
The Complainant submitted on this point that he responded by way of email in response, to his manager asking them to remove a newly added question which asked for his vaccination status, and his intentions on getting the booster.
The Complainant stated that in his response, he informed the Respondent that they are not entitled to know his vaccination status.
In addition, the Complainant also submitted that he also voiced his concern about losing work if the questionnaire wasn't completed and questioned the need of the Respondent requiring information in relation to his vaccination status.
The Complaint alleged that he was then informed by his Manger that should he not fill in the questionnaire, the matter would be refereed to Human Resource department.
The Complainant stated that the matter began to further escalate on the 05 of January 2022 when he received a call from his area manager who again asked why he was refusing to answer what his vaccination status was in the Respondents questionnaire.
The Complainant stated at the hearing that the area manager informed him that the purpose of the questionnaire was to ensure the safety of staff and service users.
Again, the Complainant submitted that the matter was not resolved, and he was informed that the matter would need to be refereed on further to Human Resources.
The Complainant submitted that this ongoing issue was starting to cause him anxiety and stress and he felt he has been punished for not answering the questionnaire which he believed he was not required to do so.
On the 05 January 2022, the same day he had this conversation with his area manager the Complainant advised the hearing that that he informed his line Manager that he had received a letter from his doctor which exempt him from wearing a face mask in the workplace.
The Complainant submits that on informing the area manager that he was now exempt from wearing a face mask, she requested he email the letter to her which he confirmed at the hearing he did without delay.
The Complainant submitted that shortly after this conversation with the area manager he was asked by her to come to her office and wait as she needed to make a phone call to the Human Resource department to try figure out what would be the next course of action.
The Complainant stated that after waiting a few minutes, he advised the hearing that on her return, she informed him that he would need to return home as a risk assessment would need to be carried out.
On the same date the Complainant advised the hearing that he was informed he was unfit to work by the Respondent and he was also informed an appointment date with the Occupational Health Assessment would be issued in due course.
The Complainant stated that he complied with the mask-wearing requirements from the introduction of those mask-wearing requirements by the Respondent in March 2020 and for all of 2021 and for the duration of 2022 also that he spent with the Respondent.
The Complainant gave further evidence that the reason why he did not at an earlier time issue a letter from his doctor or/and to inform the Respondent that he had a medical condition was due to the fact that up until then, he was trying to self-manage his condition, but after nearly two years, the Complainant stated it got too much.
Nonetheless, the Complainant stated that he was required to attend an occupational health assessment on 13 January 2022.
The Complainant attended the assessment and was later contacted by the HR Manager querying for documentation in relation to his medical condition.
The Complainant further stated that it is in this context that he wrote to the Respondent in and around the middle of January 2022 that his doctor does not need to disclose his underlying condition about what exempts him from wearing a mask and all the Respondent was entitled to know is that his doctor had assessed him and deemed him exempt from wearing a mask.
The Complainant stated at the hearing that shortly after sending the email, he was invited to another Occupational Assessment on the 26 January 2023.
The Complainant stated that while he engaged in this assessment, he declined to disclose his vaccination status at the assessment and felt he did not need to disclose this information.
Following the completion of this report, the Complainant submitted that he was informed by the HR Manager that she was not in a position to allow him to return to return to work.
The Complainant advised the hearing that the reason giving to him was that the Respondent could not allow a person who was not wearing a mask – and whose vaccination status was uncertain – to return to work in the provision of care to vulnerable service users.
The Complainant further advised the hearing that as he was starting to feel stressed with been out of work, he advised the hearing that he made the decision to return to work despite still having concerns in relation to needing to wear a face mask due to his medical condition.
In this regard, the Complainant submitted that in and around the end of February 2022 he informed the HR Manager that he could return to work.
He also advised the hearing that he informed the HR Manager that he would consent to wear a face mask.
In addition, he also furnished confirmation from his doctor on request of the HR manager that he was medically fit to work around the end of February 2022.
The Complainant informed the hearing that he returned to work on the 05 March 2022 and would work as normal up until he submitted his notice on the 04 April 2022 and left his employment on the 21 April 2022 after his notice period had ended.
(CA-00048864) The Complainant advised the hearing that the medical condition that he has is Asthma and the wearing of the mask irritates and effects his ability to breath properly. The Complaint further submitted that at no point did he inform the Respondent of this condition.
In relation to the specific complaints the Complainant submitted that alleges that he has been discriminated against by reason of his disability and due to the failure of the Respondent to provide him with ‘reasonable accommodation' for a disability the Complainant submitted at the hearing that while he did not disclose that the medical condition that he has is Asthma he advised the hearing that he felt that he did not need to disclose what his medical condition was.
In his reasoning for not informing the Respondent what his medical condition was during the relevant period, he advised the hearing that he felt that he did not need to disclose what his medical condition was.
The Complainant further stated that the medical note exempting him from wearing a face mask should have been sufficient for the Respondent to allow him to be reasonably accommodated and work without a facemask.
The Complainant also stated that he believed he was treated unfairly on the disability ground as those that did not have a medical condition preventing them from wearing a face mask were not subject to unfair treatment as he was because he could not wear a face mask.
In addition, the Complainant also advised the hearing that the Respondent breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability to ensure that he had access to employment by allowing him an exemption in wearing a face mask while working.
The Complainant also submitted on this point that there were alternative roles that he could have done in the Unit in which he would not have direct engagement with the service users.
Furthermore, he also advised the hearing that the Respondent could have placed him on office-based duties in the unit which also would have reduced or limited his engagement with any service users.
The Complainant also advised the hearing that the Respondent could have made an exemption for him to work from home in his office-based duties but did not.
In cross examination the Complainant stated that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role.
He also accepted that in his letter of resignation, he thanked the Respondent and noted the reason for leaving was due to a new opportunity.
The Complainant added that it was not until he had more time to reflect that he felt he had been treated unfairly and decided to lodge a complaint to the Workplace Relations Commission.
In cross examination the Complainant added that he did not believe he needed to provide the Respondent with any reason (medical or otherwise) to suggest that he could not wear a mask while providing healthcare services to service users and the medical note should have been sufficient.
The Complainant stated on this point that there were alternative roles that he could have done in the Unit.
During further cross examination the Complainant was asked if such roles would still require some type of interaction with the service users in which the Complainant stated that while not directly, he would be required to be still in the same building at times, therefore it would be more by way of passive indirect interaction.
The Complainant also accepted that should he have had been assigned to office-based duties in the unit, he would still have indirect contact with the service users, but noted in his response also that he would not be directly working with them.
In further cross examination on this point of interaction with staff and in particular; the service users, the Complainant accepted and did not dispute that Covid-19 was an infectious disease which could be transmitted through the air.
The Complainant also accepted that within the context of the type of vulnerable service users that were in the care of the Respondent in which was the Complainants place of work that Covid 19 was an infectious disease that could cause serious risk to the staff and particularly to the service users due to the range of various medical conditions.
During cross examination the Complainant was asked if such roles would still require some type of interaction with the service users in which the Complainant stated that while not directly, he would be required to be still in the same building at times, therefore it would be more by way of passive indirect interaction.
CA-00048864 Discriminatory Dismissal In relation to the discriminatory dismissal aspect of his complaint, the Complainant clarified at the hearing that he also wished to proceed in respect of this aspect of the complaint.
As there was no clear details set out in the Complainants narrative on this point, I afforded the Complainant the opportunity to elaborate in respect of his claim of discriminatory dismissal in which he alleged at the hearing.
The Complainant advised the hearing that after accepting to come back with the use of a face mask to his place of work, he returned to work on the 05 March 2022 and would work as normal up until he submitted his notice on the 04 April 2022 and left his employment on the 21 April 2022 after his notice period had ended.
The Complainant stated that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role.
While the Complainant accepted that in his letter of resignation that he thanked the Respondent and noted the reason for leaving was due to a new opportunity, it was not until he had time to reflect that he believed he was treated unfairly due to his disability.
The Complainant added that it was in this context that he decided to lodge a complaint to the Workplace Relations Commission and the reason why he left the position is because of the treatment that unfolded due to his medical condition that exempt him from wearing a facemask.
Complaint in respect of harassment (CA-00048019) In relation to the complaint the Complainant submitted in relation to Harassment as the Complainant did not particularise in detail as to how he had been the subject of “harassment” in the course of his employment with the respondent, I explained Harassment as defined under Section 14A(7) of the Act of 1998.
In this regard, the Complainant advised the hearing that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role, nor did he invoke the Respondents bullying and harassment policy.
The Complainant stated on this point that it was not until he had more time to reflect after he had left his employment with the Respondent that it was due to been subject to Harassment and decided to lodge a complaint to the Workplace Relations Commission and the reason why he left the position is because of the treatment that unfolded towards him due to his medical condition that exempt him from wearing a facemask.
(CA-00048019) In relation to the complaint submitted by the Complainant in respect of victimisation the Complainant was afforded the opportunity to give evidence in relation to any action of his that comes within any of the items listed in the definition of victimisation.
As the Complainant was a lay litigant, I informed the Complainant of what Victimisation is as defined under Section 74 (2) of the Act of 1998 and it in this context that he should submit any evidence he wished to give.
In this regard, the Complainant submitted that due to submitting a letter that he was exempt from wearing a facemask, the Respondent deemed him unfit to work and he believes this to be Victimisation.
On further note, the Complainant added at the hearing that he felt overall he was subject of victimisation due to his condition and not been in a position to be able to wear a facemask.
In his closing argument, the Complainant stated at the hearing that overall, the type of treatment he was subjected to over by the Respondent amounted to discrimination on the grounds of his disability and the failure by his employer to provide reasonable accommodations for him which would exempt him from wearing a mask during the course of carrying out his duties. He also states this led to him been victimised and eventually to discriminatory dismissal.
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Summary of Respondent’s Case:
Respondents overview of the Complainants complaints CA-48864 and CA-00048019.
The Respondent contends that all of the complaints of discrimination, victimisation and harassment on grounds of disability and alleged failure to provide reasonable accommodation: and alleged discriminatory dismissal contrary to the Act of 1998 are unfounded.
The Respondent submits that the complaints are rooted in the fact that the Complainant was not in a position to wear a face mask during a period of time when, for urgent reasons arising from the Covid-19 pandemic, the Respondent required staff members who provide care to service users to wear face masks.
The Respondent further submitted that it provides care to persons with physical and intellectual disabilities. Many of the service users to whom the Respondent provides care are people who suffer from both disabilities that range from moderate to severe disabilities; and medical diagnoses that can, in many cases, also be severe.
In addition, the Respondent submitted that the service-users are among the most vulnerable people in the country and that they require high levels of support.
The Respondent added that during the Covid-19 pandemic, it took all appropriate measures to protect both the service users in its care and the members of its staff from Covid-19. The Respondent’s measures have been in line with public heath advice, statutory obligations and comprehensive risk assessments conducted by the Respondent at appropriate times.
The Respondent advised the hearing that the Complainant worked for the Respondent from 2017 until he resigned to take up alternative employment in 2022. During the period of time that is relevant to this complaint, the Respondent submitted that the Complainant worked in the position of Deputy Team leader at one of its residential care units that is the home of three of its service users.
During the period from March 2020, the Respondent stated that it took a large range of measures to protect its service users and staff from the effects of the Covid-19 pandemic.
By way of background information, the Respondent submitted that it conducted comprehensive risk assessments in respect of Covid-19. The first assessment was completed early in the pandemic (in March 2020) and has been updated continuously throughout the pandemic.
It is in this context the Respondent submits that the wearing of face masks by members of staff was a crucial element of the risk-mitigation measures adopted by the Respondent and it was also a public health requirement.
During the relevant period, the Respondent submits that the Omicron variant of Covid-19 caused a massive number of cases of the virus. These restrictions were relaxed for the public later in the relevant period, but measures in the context of the healthcare sector remained in place throughout the relevant period.
Prior to, during and since the relevant period, one of the many actions that the Respondent advised the hearing that it took to protect its service users and staff was to require each staff member to complete an online questionnaire on the day before each scheduled day of work. The questionnaire is issued by email each day and can be completed by each employee on their PC or mobile phone. The questionnaire went through a large number of iterations, having regard to the changing characteristics of the pandemic.
The Respondent submitted that Version 32 of the questionnaire, which was issued from 8 January 2022 was used as a means of ensuring that staff members who were suffering from, or at risk of, Covid-19 were required to provide relevant and necessary information in respect of their situations.
The Respondent explained that this allowed them to (among other things) ensure that staff members who were Covid-19 positive did not have contact with service users or other staff. It also allowed the Respondent to assess the various risks arising from various risk factors, including in respect of people who were close contacts of positive cases and people who had been travelling.
The Respondent added on this point that it had, in earlier versions of this questionnaire, been asking staff about their vaccination status since shortly after vaccines became available for healthcare workers.
The Respondent submits that the Complainant had already confirmed that he had received his first vaccine dose in February 2021.
In December 2021, the Respondent submitted at the hearing that it added questions to the questionnaire about whether staff members had received a booster dose of the vaccine. The Respondent submits that it done this as it was necessary because public health advice mandated different treatment for people who had been fully vaccinated and boosted, as opposed to people who had not.
The Respondent explained that it was necessary to ask staff members about their vaccination status in that people who were fully vaccinated and boosted and who were asymptomatic close contacts of positive cases were required to restrict their movements for five days, whereas people who were not fully vaccinated and boosted and who were asymptomatic close contacts such close contacts were required to restrict their movements for ten days.
In relation to the factual background in regard to the Complainant’s complaints, the Respondent submitted that the Complainant complied to the mask-wearing requirements from the introduction of those mask-wearing requirements by the respondent in March 2020 and for all of 2021 and in his return in 2022.
During this period the Respondent submitted that the Complainant did not at any time provide any reason (medical or otherwise) to suggest that he could not wear a mask while providing healthcare services to service users.
The Respondent states that the first time this was brought to their attention was on 5 January 2022 when Complainant furnished a medical certificate dated the 22 December 2021 from a GP to his manager which did not indicate that the Complainant had any disability.
The Respondent advised the hearing that the certificate just stated that it is to excuse the Complainant from wearing a mask on medical grounds. The Respondent further advised the hearing that upon the Complainant presenting the certificate the Complainant was asked to go home pending assessment.
The Respondent submitted that the reason it took such action was in the context that they need to have regard to the significant risks that had been assessed because of Covid-19 – and the extent to which mitigation of those risks required mask-wearing.
The HR Manager of the service gave evidence at the hearing that she emailed the Complainant informing him that it would not be safe for him to work at present and that he was certified as unfit for work.
The HR Manager advised the hearing that although his medical certificate did not say that he was unfit for work, if he could not wear a mask for (unspecified) medical reasons, the Respondent was still entitled to be concerned that he could not, for medical reasons, work safely.
The HR Manager gave further evidence that after making a request for further information into the Complainants medical condition, she received email correspondence in which the Complainant rejected that he or his doctor would disclose the nature of any medical condition to which his medical certificate dated 22 December 2021 referred too.
The Respondent submitted that that on 14 January 2022 the Complainant wrote:
“My doctor does not have to disclose my underlying condition that excises me from wearing a mask. All you are entitled to know is that a health professional has assessed me and has deemed me exempt from wearing a mask.”
It is in this context the HR Manager advised the hearing that she could not carry out an assessment or make any reasonable accommodation for any disability that may have affected the Complainant because he did not and would not disclose any disability.
Notwithstanding this, the Respondent submits that the Complainant was invited to attend a remote medical assessment with the Respondent ‘occupational health provider on 13 January 2022.
The Respondent further submits that the Complainant attended the remote assessment and the Respondent expected to receive a report shortly after that date. However, the Respondent submitted that they learned from the occupational health provider that the Complainant did not meaningfully engage with the assessment.
The HR Manager for the Respondent gave evidence on this point that they were informed by the occupational health provider that the Complainant had also informed them that the issues had been resolved, with the effect that no report was completed.
On learning this, the HR Manager gave evidence that they scheduled another assessment for 26 January 2022.The Respondent received (from its occupational health provider) a further medical report of an assessment that took place on 26 January 2022. The report said, among other things, the following: “that he has psychological reasons for not wearing a mask and is supported byhis GP … He is fit to return to work immediately.
The Respondent submitted that in response to the question “what adjustments to the work task or environment may help facilitate rehabilitation or an early return to work” the report said the Complainant “cannot wear a facemask for psychological reasons and this and is supported by hisGP. He declined to advise me of his vaccination status which would play an important part in myrisk assessment particularly in the context of him not wearing a mask in a healthcare setting.Unfortunately, I am therefore not in a position to provide you with a full report”.
The HR Manager gave evidence that having regard to the facts that the report was not a full report, and that the Complainant had declined to disclose relevant information about his vaccination status, she was not in a position to allow the Complainant to return to work.
The decision she took was based on the risk that allowing a person who was not wearing a mask – and whose vaccination status was uncertain – to return to work in the provision of care to vulnerable service users.
It is in this context that the Respondent submits that the Complainant remained on sick leave.
Subsequently in late February 2022, the Respondent submitted that the Complainant indicated by email to the Respondent that he could return to work. The Respondent also stated that the Complainant also indicated that he was now “willing to wear a mask”. The HR Manager asked him to provide confirmation from his doctor that he was fit to return and fit to wear a mask in which the Complainant furnished certificate dated 28 February 2022 that indicated that he was “medically fit to work”.
The Respondent also submitted at the hearing that the certificate did not indicate that the Complainant was under any medical restriction that would prevent him from wearing a mask and it is in this context he returned to work on 5 March 2022
The Respondent stated that the Complainant worked as normal until the 4 April 2022 when he submitted his notice of resignation and left his employment on the 21 April 2022 when the notice period ended.
The Respondent further submitted that in the Complainants letter of resignation, he thanked the Respondent for his time with the company and he also did not voice any concern or grievances.
Legal submissions The Respondent submitted that in order that the Complainant demonstrate that any of the complaints are well founded, they must first establish a prima facie case. The Respondent notes that this requires that the Complainant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.
Complaints in respect of discrimination (CA-48019, CA-48864) In respect of the complaints submitted by the Complainant the Respondent submitted that it did not discriminate against the Complainant on grounds of disability.
TheRespondent told the hearing that it took appropriate measures to comply with public health guidance and its own risk assessments in light of the urgent threat to the safety health and welfare of the service userswho are under the care of the Respondent.
The Respondent submitted also that they were not provided with any supporting documentation or information that would support the case that the Complainant has or had or may in the future have a “disability “as defined.
The Respondent further submitted that the Complainant has asserted the existence of an unspecified psychological condition but has provided no evidence of its existence. Neither of the relevant medical reports describe any disability.
The Respondent on this point submits that the Labour Court has addressed how cases such as this (in which no details of an alleged “disability” have been provided by a complainant) should be considered.
A Retail Company vA Worker EDA 2012, the decision of the Court was as follows. “In cases of discrimination under the Employment Equality Acts the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. In the instant case that burden requires the Complainant to prove that she suffered from a disability within the meaning of the Acts.
As the Court of Justice noted in Chacon Navas v Eurest Coletividades SA (2006) ECR 1-6467 there is a distinction between sickness and disability. This Court noted, as was pointed out by the Respondent’s representative, in A Worker v A Government Department (EDA 094) that suggestions which blur the distinction between ordinary human reaction to stressful situations and recognised psychiatric illness are an ‘absurdity’.
It is not sufficient, therefore, for the Complainant to rely on ‘stress’, however caused, as grounds for a claim to have a disability. It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court.
The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value.
The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question. As the Complainant has not met the burden of proof, it follows that the claim must fail.”
The Respondent further submitted that even if the Complainant now establishes that he had a disability (as defined) during the relevant period, he cannot have been discriminated against on grounds of a disability of which the Respondent was not aware of during the relevant period.
The facts of this complaint are comparable to those in the decision of Lee Stella v Go Ahead Transport Services (Dublin) Limited ADJ-32315, in which the adjudication officer decided as follows.
“The complainant stated in an email on 8 February 2021 (three days after being sent home for not wearing a mask) “In response to your email I have enclosed my legal right to exemption from wearing a face mask due to the fact that I have a reasonable excuse. Under the GDPR Act I do not by law have to provide you with any evidence for this. He also stated the respondent was now aware that he had a disability. Then, at the disciplinary meeting on 10 May 2021 the complainant was asked to elaborate on why he couldn’t wear a face covering and he refused. … The events I am looking into start on 5 February 2021 when the complainant refused to wear a mask or visor and was sent home. The exemption he claimed was made on the complainant’s contention this would cause him “severe distress” but gave no indication what this was. On 8 February 2021 he stated he had a legal right, under GDPR not to provide evidence of his reason for refusing to wear a mask or visor.
On this point the Respondent referred to Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant refused to give the respondent evidence of a disability to the respondent during the period to which his claim applies. In these circumstances he is unable to show discrimination on the ground of disability took place. I therefore find he is unable to establish a prime facie case of discrimination.”
The Respondent also submits that the Complainant has not identified any comparator in respect of whom he received less favourable treatment. In order for him to establish a case of discrimination he must identify a comparator and demonstrate that he was treated less favourably than that comparator. Thiscomplaint the Respondent put forward at the hearing is comparable to the complaint in Graham Burke v Total ICT Services Ltd ADJ-34159. In that case, Mr Burke complained that he was discriminated against on grounds of disability because he was required to wear a face mask while working at a customer site.
The adjudication officer rejected his complaint in terms that included the following conclusion. “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.”
Complaints in respect of reasonable accommodation (CA-00048864) In relation to the Complainants complaint that the Respondent failed to provide reasonable accommodations the Respondent submitted that
Section 16(3) and section 16(4) of the Act of 1998 sets out the relevant obligations of an employer towards an employee who has a disability.
In this case, the Respondent firstly submitted that the existence of any disability remains to be established. Notwithstanding and without admission of guilt, the Respondent submits that even if the Complainant met the definition of having a “disability”, the Respondent submits that he expressly declined to inform the Respondent of the nature of that disability.
The Respondent stated that should the Complainant have engaged with them on this aspect, they would have provided reasonable accommodation for any disability of which it was aware. However, it does not have any obligation to provide reasonable accommodation in respect of any disability of which it was not aware.
Nonetheless in cross examination, the Respondent stated that while it did not have any obligation to provide reasonable accommodation in respect of any disability of which it was not aware, the HR Manager gave evidence on the date of the hearing that, while the Complainant failed to provide further details and engaged in a limited capacity in relation to his alleged disability, the Respondent still fairly and comprehensively considered other roles for the Complainant, but none were available during this time that would not pose a serious health risk to its staff and also its service users.
The Respondent HR Manager gave further evidence on this point that, an office based role in the unit in which its service users were based would still require indirect contact with its service users therefore this type of role was not suitable as it would still pose a serious health risk to its staff and in particular its service users particularly in the context of the Covid virus and restrictions and health guidelines in place at the time.
Complaint in respect of discriminatory dismissal (CA-00048864) In relation to the complaint in respect of discriminatory dismissal (CA-48864), the Respondent advised the hearing that the Complainant was not dismissed and that he voluntarily resigned in order to take up alterative employment.
In this regard, the Respondent further stated that the Complainant on foot of submitting his notice of resignation on the 04 April 2022, he left his employment on the 21 April 2022 when the notice period ended.
In addition, the Respondent advised the hearing that the Complainant in his letter of resignation thanked the Respondent for his time with the company and at no time did he voice any concern or grievances.
Complaint in respect of harassment (CA-00048019) In relation to the complaint the Complainant submitted in regard to Harassment theRespondent submitted at the hearing that the Complainant did not abduce any evidence that could lead to a finding that he has been the subject of “harassment” in the course of his employment as defined under Section 14A(7) of the Act of 1998.
At the hearing the HR Manager for the Respondent gave evidence that the Respondent has comprehensive supports in place to protect employees from harassment and to address complaints of alleged harassment. The HR Manager further advised the hearing that these are also set out in its Bullying and Harassment Policy.
The HR Manager also stated that the Complainant at no stage invoked this policy in respect of any alleged harassment towards him. In addition, the Respondent also noted in the Complainants letter of resignation on the 04 April 2022, the Complainant thanked the Respondent for his time with the company and he also did not voice any concern or grievances at this point either.
The Respondent submitted that in the event that any harassment (as defined) occurred, the Respondent is entitled to avail of the defence provided by section 15(3) of the Act of 1998 in the following terms,
“(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.”
Complainant in respect of victimisation (CA-00048019) In regard to thecomplaint submitted by the Complainant in respect of victimisation (CA-48019) the Respondent submits that Section 74(2) of the Act of 1998 defines “victimisation” in the following terms.
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal StatusAct 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.” The Respondent submits that the Complainant has not identified any action of his that comes within any of the items listed in the definition of victimisation as defined under Section 74 (2) of the Act of 1998.
In its closing statement the Respondent contends that all of the complaints of discrimination, victimisation and harassment on grounds of disability and alleged failure to provide reasonable accommodation: and alleged discriminatory dismissal contrary to the Act of 1998 are unfounded.
The Respondent further contends that at all times they acted lawfully and in accordance with its obligations to the Respondent and in the context of its obligations to protect the health and safety of its service users and staff during a period of time when, for urgent reasons arising from the Covid-19 pandemic, the Respondent required staff members who provide care to service users to wear face masks. |
Findings and Conclusions:
(CA-00048863) At the outset the Complainant confirmed on the date of the hearing that complaint application CA-00048863 is a duplicate of Complaint application of CA-00048864 therefore he consented to it been withdrawn.
(CA-00048864) The first aspect of this complaint is an Employment Equality Act complaint of discrimination and the failure to provide reasonable accommodation on grounds of disability. The Complainant submits that the Respondent discriminated against him on the disability ground and breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability to ensure that he had access to employment by allowing him an exemption in wearing a facemask while working. the vulnerable service users staff worked with across a number of its residential units.
In addition, the Complainant alleged discriminatory dismissal from his employment.
Statutory background Section 2 of the Act of 1998 defines “disability” as follows. “2.—(1) In this Act, unless the context otherwise requires— “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;
Section 6(1) of the Act of 1998 prohibits discrimination in the following terms. “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,
Section 6(2): Prohibited grounds for the purposes of the EEA, discrimination occurs where a person is treated less favourably than another ‘is, has been, or would be’ treated, in a comparable situation, on any of the specified grounds. Section 6(2) of the EEA defines the nine prohibited grounds. These are: gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.
Section 6(2) sets out the discriminatory grounds as between any two persons, which include the following;
“(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—(a) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
Section 85A Burden of Proof Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.
If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider and listen to the facts whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
Section 16 Employment Equality Act Section 16(1) of the Employment Equality Act addresses the extent of the obligation of an employer to provide reasonable accommodation to an employee.
‘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.’
Section 16(3) outlines the obligation to provide appropriate measures to an employee: ‘(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.’
Section 16(4) addresses what are appropriate measures. ‘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.’
Interpretation of ‘reasonable accommodation’
Nano Nagle School v Daly In the Nano Nagle School v Daly [2019] IESC 63, case, the Supreme Court addressed the obligation for the employer to provide reasonable accommodation to an employee in the following terms:
‘Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable.
It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation.
It is in this context is that if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.
But Section 16(3)(b) explicitly identifies the mandatory primary duty of an employer in that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. In addition, there is no one-size-fits-all approach, and the nature of the obligation to provide reasonable accommodation depends on the circumstances. For example, this could relate to the size of the organisation and the available roles within it.
Application to the facts of this case It is in this context that the Complainant must establish primary facts upon which the claim of discrimination is grounded, and it is then the burden of proof passes to the Respondent. Furthermore, in considering this case, I apply the expansive interpretation of ‘reasonable accommodation’ as set out and referenced above in Nano Nagle.
It was not disputed in this case that Covid-19 was an infectious disease which could be transmitted through the air. It was also not disputed that face coverings provide protection against the transmission of the disease.
At the outset, it was further not disputed by the Complainant that within the context of the type of vulnerable service users that were in the care of the Respondent in which was the Complainants place of work, that Covid 19 was an infectious disease that could cause serious risk to the staff and particularly to the service users due to the range of various medical conditions.
It is in this context that I am conscious that the threat to public health was real and immediate. In O’Doherty and Waters v Minister for health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms:
“The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated’’.
While I note the medical note provided by the Complainant and accept based on the Complainants evidence provided at the hearing that the Complainant has a disability as defined in the Act, I do also note that the Complainant did not engage with the Respondent in relation to his disability despite having numerous opportunities to do so.
In this regard, I am also satisfied that the Respondent attempted on numerous occasions to engage with the Complainant on this matter to no avail. It is in this context I also note that in the Occupational Assessment the Complainant attended, he refused to disclose his disability.
In addition, while I note the Complainant disclosed his disability in cross examination at the hearing, he also confirmed at the hearing that at no stage did he provide this information to the Respondent.
The Complainant in his reason for not disclosing his disability to the Respondent gave evidence at the hearing that he believed that a doctor’s medical note stating his exemption from wearing a mask should have been sufficient for the Respondent to accommodate him.
Based on the evidence submitted, I accept that the only other information the Respondent received that gave any further light on the Complainants disability comes from its occupational health provider) medical report of an assessment that took place on 26 January 2022. The report said, among other things, the following: “that he has psychological reasons for not wearing a mask and is supported by his GP … He is fit to return to work immediately.
In this regard, I accept the Respondents evidence that they were working off very vague information in support of a case that the Complainant has, or had, or may in the future have a “disability”.
It is in this context that that I also accept while the Respondent had received very little information from the Complainant in relation to his disability, I am satisfied that the Respondent still fulfilled its obligations by considering other positions than the employee’s current position, albeit one the employee is capable of and in which there is a vacancy.
I am also satisfied and accept the Respondents evidence that considering the setting and context of its work it had no role to accommodate the Complainant where a direct or indirect threat to the health and safety if its staff and also its service users would not have been at risk.
I am also conscious that during this period, the Respondent needed to take appropriate measures to comply with public health guidance that was particularly heightened during the time of the incident and also its own risk assessments in light of the urgent threat to the safety, health and welfare of its staff and in particular the vulnerable service users who are under the care of the Respondent.
Furthermore, based on the evidence provided by both parties I also accept that while the Complainant met the definition of having a “disability” I also duly note that before the date of the hearing, he expressly declined to inform or engage with the Respondent in regard to the nature of that disability during the relevant period despite having numerous occasions and opportunities to do.
At this time, I must also note that not wearing a face covering indoors increased the public health risk and therefore reasonable accommodation does not encompass an obligation on the employer to permit an employee work without a face covering. Being able to attend work in these circumstances without a face covering is not an ‘appropriate measure’ within the ambit of section 16 of the Employment Equality Act. It is in this context that there was, therefore, no contravention in the obligation on the Respondent to provide reasonable accommodation.
Nonetheless, as set out in the Respondents evidence and as mentioned previously, while the Complainant failed to provide further details in relation to his disability, the Respondent still fairly and comprehensively considered other roles for the Complainant, but none were available during this time that would not pose a serious health risk to its staff and also its service users.
The Complainant has also not identified any comparator in respect of whom he received less favourable treatment.
In all of the circumstances of this aspect of the complaint, I find on the balance of probabilities that 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 and that the requirement to wear a face mask by the Respondent was to help prevent the spread of Covid 19 virus amongst its staff and in particular the vulnerable service users staff worked with across a number of its residential units. He has also not shown that the Respondent breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability.
(CA-00048864) Discriminatory Dismissal In relation to this aspect of the complaint, the Complainant clarified at the hearing that he also wished to proceed in respect of a complaint in relation to discriminatory dismissal. As there was no clear details set out in the Complainants narrative on this point, I afforded the Complainant the opportunity to elaborate in respect of his claim of discriminatory dismissal in which he alleged at the hearing.
The Respondent did not object to this at the hearing and was prepared to contend the complaint made against it in this regard in its submission and at the hearing.
The Complainant advised the hearing that after accepting to come back with the use of a face mask to his place of work he returned to work on the 05 March 2022 and would work as normal up until he submitted his notice on the 04 April 2022 and left his employment on the 21 April 2022 after his notice period had ended.
In cross examination. the Complainant stated that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role. He also accepted that in his letter of resignation, he thanked the Respondent and noted the reason for leaving was due to a new opportunity.
The Complainant added that it was not until he had more time to reflect that he felt he had been treated unfairly and decided to lodge a complaint to the Workplace Relations Commission and the reason why he left the position is because of the treatment that unfolded due to his medical condition that exempt him from wearing a facemask.
The Complainant in this regard alleges he has been (i) discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015, and (ii) in dismissing him for discriminatory reasons.
Section 6 of the Employment Equality Acts 1998-2015 states that discrimination occurs 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 discriminatory grounds which exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned. Discrimination on the “disability ground” is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)
The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides 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.”
Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.
The Complainant stated that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role. He also accepted that in his letter of resignation, he thanked the Respondent and noted the reason for leaving was due to a new opportunity.
The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 these 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 is no infringement of the principle of equal treatment.”
It follows that a Complainant must establish both the primary facts upon which he relies and also that those facts are of sufficient significance to raise an inference of discrimination.
I find that the Complainant has not shown that the Respondent acted in a discriminatory manner towards him and has not established a prima facie case of discrimination therefore the complaint fails.
In this regard, the Complainant was not dismissed, and I accept he voluntarily resigned in order to take up alternative employment.
In all of the circumstances of this complaint, I find on the balance of probabilities that 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 and that the requirement to wear a face mask by the Respondent was to help prevent the spread of Covid 19 virus amongst its staff and in particular the vulnerable service users staff worked with across a number of its residential units.
He has also not shown that the Respondent breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability.
In addition, in relation to the alleged discriminatory dismissal, I find that the Complainant resigned from his employment and was not dismissed, and I accept he voluntarily resigned in order to take up alterative employment.
(CA-00048864) Accordingly, I find that all the complaints set out herein CA-00048864 are not well founded.
(CA-00048019) In relation to the complaint the Complainant made in respect of harassment (CA-48019) Section 14A(7) of the Act of 1998 defines “harassment” in the following terms. “(a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, (ii) …,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.”
In further terms, harassment is defined in section 14A(7) of the EEA as any form of unwanted conduct related to any of the prohibited grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment for the person.
Harassment or bullying that is not linked to one or more of the discriminatory grounds is not covered by the EEA. The conduct at issue may not be specifically directed at a particular employee but nevertheless has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
The Complainant did not abduce any evidence at the hearing that could lead to a finding that he has been the subject of “harassment” in the course of his employment with the Respondent. In cross examination, I note also that Complainant stated that at no point did he raise a grievance with the Respondent that he was subject to harassment.
The Complainant advised the hearing that after accepting to come back with the use of a face mask to his place of work he returned to work on the 05 March 2022 and would work as normal up until he submitted his notice on the 04 April 2022 and left his employment on the 21 April 2022 after his notice period had ended.
In cross examination, I also note that the Complainant confirmed that on handing in his notice he did not notify or voice any grievances relating to why he was leaving the role. The Complainant also confirmed that in his letter of resignation, he thanked the Respondent and noted the reason for leaving was due to a new opportunity.
I also note that should the Complainant have wished to raise a grievance in this regard, the Respondent gave evidence at the hearing that it has comprehensive supports in place to protect employees which are set out in it its Bullying and Harassment Policy which at no time did the Complainant invoke.
While I note the Complainant added that it was not until he had more time to reflect after he had left his employment with the Respondent that he began to feel that he had been treated unfairly and decided to lodge a complaint to the Workplace Relations Commission, the Complainant did not abduce any evidence at the hearing that could lead to a finding that he has been the subject of “harassment” in the course of his employment with the Respondent.
In this regard, this aspect of the complaint in relation to the complaint in respect of harassment (CA-48019) is not well founded.
(CA-00048019) In relation to the complaint in respect of victimisation (CA-48019) Section 74(2) of the Act of 1998 defines “victimisation” in the following terms. “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal StatusAct 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
While I afforded an opportunity to the Complainant to state within this context, the Complainant has not identified any action of his that comes within any of the items listed above. In this regard, this aspect of the complaint in relation to the complaint in respect of victimisation (CA-48019) is not well founded.
(CA-00048019) Accordingly, I find that all the complaints set out herein (CA-00048019) having considered the submissions of the parties and evidence, in relation to Harassment and Victimisation are not well founded. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Having considered the submissions of the parties in relation to the complaints, I find as follows:
(CA-00048863) The Complainant confirmed on the date of the hearing that Complaint application CA-00048863 is a duplicate of Complaint application of CA-00048864 therefore he consented to it been withdrawn.
This complaint is withdrawn.
(CA-00048864) In all of the circumstances of the complaint, I find that 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 and that the requirement to wear a face mask by the Respondent was to help prevent the spread of Covid 19 virus amongst its staff and in particular the vulnerable service users staff worked with across a number of its residential units.
He has also not shown that the Respondent breached section 16 of the Employment Equality Act in failing to provide a reasonable accommodation in respect of his disability.
In addition, in relation to the alleged discriminatory dismissal, I find that the Complainant resigned from his employment and was not dismissed, and I accept he voluntarily resigned in order to take up alterative employment.
Accordingly, I find that the all the complaints set out herein CA-00048864 are not well founded.
CA-00048019 Having considered the submissions of the parties and evidence, I find that all the complaints set out herein (CA-00048019) in relation to Harassment and Victimisation are not well founded.
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Dated: 01st August 2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Discrimination, Reasonable Accommodation, Discriminatory dismissal, Victimisation, Harassment |