Complainant

Respondent

Anonymised Parties

Patient

Health Service

Representatives

Self-Represented

Mr. Dermot Scanlon J.D. Scanlon & Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00047485-001

01/12/2021

On 1st December 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that she had been discriminated against in the provision of a service on the grounds of disability. By subsequent submission, the Complainant alleged that the Respondent failed to make a reasonable accommodation to allow her to avail of essential medical services. In particular, she alleged that the Respondent insisted that she wear a face covering to avail of services when she was medically exempt from doing so. In denying this allegation, the Respondent submitted that the Complainant did not provide proof of said exemption or disability at the relevant time.

A hearing in relation to this matter was convened for and finalised on 4th July 2022. This hearing was conducted 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. No technical issues were experienced by either party in the course of the hearing.

The Complainant gave evidence in support of her own case, while the Respondent called the General Manager of the premises to give evidence. In circumstances whereby the subject matter of the complaint relates to the Complainant’s medical history, I have utilized my discretion to anonymise the party names in the published decision.

No issues as to jurisdiction were raised at any stage of the proceedings. From a review of the documentation provided, it is apparent that the Complainant had complied with the notification requirements of the Act.

The Complainant attended a clinic run by the Respondent for the purposes of a scheduled medical appointment on 19th August 2021. On arrival at the building, the Complainant was asked to wear a face mask in accordance with the contemporary guidelines to limit the spread of the Covid-19 virus. The Complainant advised the security guard that she was exempt from wearing a face mask under the terms of Statutory Instrument 296/2020. Following this exchange, the Complainant proceeded to the reception area in order to book in for her appointment. Shortly thereafter, a person that identified themselves as “the manager” approached the Complainant and requested that she wear a face covering. Once again, the Complainant explained that she was exempt from under terms of Statutory Instrument 296/2020. By response, the manager stated that the Complainant would not be attending any appointment without wearing a mask. The Complainant was asked to leave and advised that if she failed to do so that she would be removed from the building. The Complainant refused to leave and the Gardaí subsequently attended.

Whilst the Complainant was waiting for the Gardaí to arrive, the manager contacted her GP surgery to determine whether the Complainant was an exempt person as claimed. As this information could not be divulged to a third party, the receptionist called the Complainant to confirm that the information could be disclosed to the manager. When the Complainant attempted to show the exemption letter to the manager he cast doubt of the veracity of the same. As it was apparent that the Manager would not allow the Complainant to attend her appointment in any circumstances, she duly left the building. The Complainant had to attend an emergency department to complete her medical appointment.

By submission, the Complainant alleged that the Respondent failed to provide essential medical services to her. She submitted that this failure arose from her inability to wear a facemask on medical grounds. She submitted that this exemption was set out in correspondence from her GP, which the Respondent refused to consider. As a consequence of the foregoing, the Complainant submitted that the Respondent had failed to make a reasonable accommodation for her disability.

In answering the complaint, the Respondent denied that they had failed to provide a reasonable accommodation for the Complainant at any stage.

They accepted that the Complainant attend the clinic on 19th August 2021. They further accepted that the Complainant was asked to wear a face covering whilst attending said visit and subsequently submitted that she was exempt from such a requirement. Matters diverge from the Complainant’s account somewhat in that the manager of the service stated that he was called down to the waiting area of the clinic as the Complainant was shouting at the receptionist. The Manager stated that he spoke with the Complainant and advised that she would be required to wear a face covering whilst in the clinic. When the Complainant advised that she was exempt, the Manager requested that the Complainant provide correspondence from her GP outlining the same.

Thereafter, the Manager contacted the Complainant’s GP, with the Complainant’s consent. The GP’s practice stated that they had no record of any such correspondence on file for the Complainant. On receiving this information, the Manager requested that the Complainant leave the premises. At this point, the Gardaí had attended the clinic. After a period of time, the Gardaí also requested that the Complainant leave the premises which, after a period of time, she did. Some hours following this incident, the Complainant’s GP phoned the practice and advised that an exemption letter had been discovered and that incorrect information had been provided earlier.

By submission, the Respondent denied that they had discriminated against the Complainant regarding the provision of services. They submitted that they had an obligation to ensure safety of their vulnerable patients by ensuring all Covid-19 guidelines were complied with. They submitted that the Complainant had not proven the existence of any disability within the meaning of the Act prior to the hearing of the matter. Having regard to the foregoing, the Respondent submitted that the Complainant’s application must fail.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or  a section of the public, and without prejudice to the generality of the foregoing, includes… (a) access to and the use of any place”

Section 3(1) provides 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 grounds specified in subsection (2)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2)(g) lists disability as one such ground.

Section 4 of the Equal Status Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide as follows:

“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 facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

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.”

In the case of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that,

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

In the present case, much of the factual matrix is agreed between the parties. It is agreed that on the morning of 19th August 2021, the Complainant attended the Respondent’s premises for the purposes of attending a pre-arranged medical appointment. It is agreed that on arrival the Complainant was asked to wear a face mask, to which she replied that she was exempt. It is agreed that during a further conversation with the manager of the premises, she stated that she had correspondence from her GP setting out the nature of the exemption but that she did not have a physical copy about her person at that point in time. Again, it is agreed that the manager contacted the Complainant’s GP office to confirm the Complainant’s position in this regard. The direct evidence of the manager was that he was positively informed initially informed that the Complainant had no such correspondence on file. Some time later the GP practice called him back and advised that she did indeed have a letter of exemption on file and that he had been misinformed previously.

Having regard to the foregoing, the Complainant’s submission is that she is a person that is medically exempt from wearing a face covering. She submitted that the governing legislation makes provisions for persons such as herself regarding the requirement to wear a face covering in public places. This being the case, the Respondent failure to allow her attend her appointment on the grounds of a failure to wear a mask constitutes discrimination on the grounds of disability. She submitted that the Respondent made no effort, reasonable or otherwise, to accommodate her disability and allow her access to their services. By response, the Respondent stated that the nature of their service involves interaction with an extremely vulnerable cohort of the population. They stated that they had a duty to ensure that the Covid-19 guidelines were strictly adhered to. While they stated that they were willing to make exceptions to the same in certain instances, the Complainant did not provide any proof, beyond her word, regarding her exemption from the requirements.

The first point to note regarding the foregoing is that the incident occurred in August 2021, at which point the restriction arising from the Covid-19 pandemic had been in force, in one form or another, for a period of approximately seventeen months. While Statutory Instrument 296/2020 permits the Complainant to be exempt from certain restrictions that relate to the population as a whole, the application of this exemption necessitates a certain burden of proof. The Complainant, in contemplation of the same, requested and received correspondence from her GP setting out that she was exempt on medical grounds. Ideally this correspondence would be used to provide proof of her exemption from the requirement to wear a face covering and thereafter other accommodations could be explored. On the morning in question, the Complainant attended the health centre without a copy of this correspondence.  In such a situation, the Respondent is perfectly entitled to request that the Complainant comply with the regulations or, in the alternative, prove that she was an exempt person within the meaning of Statutory Instrument 296/2020. It appears the difficulties arise when the Respondent was informed by the Complainant’s GP practice that no such correspondence existed. In such circumstances it is reasonable for the Respondent to conclude that the Complainant did not fall under the exemptions and refused service on these grounds. Having regard to the foregoing, it is apparent that the Respondent did not refuse service due to the Complainant’s disability but due to a miscommunication from her GP’s practice in respect of the same. In such circumstances the Respondent was not aware of the existence of any disability for which they had to make accommodation; in fact it appears that they were erroneously informed that no such disability existed at all.

Having regard to the totality of the foregoing points, I find that the Respondent did not discriminate against the Complainant and did not engage in any conduct prohibited by the impleaded legislation. 

I find that the Respondent did not discriminate against the Complainant and did not engage in any conduct prohibited by the impleaded legislation