Complainant

Respondent

Parties

Shivaun Mooney

Rialto Medical Centre

Representatives

Self-represented 

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00044968-001

02/07/2021

The complainant outlined that she had attended the respondent GP practice on many occasions during the pandemic and not worn a mask. In April 2021, the complainant was asked to wear a face mask and despite her referring to her exemption and producing the certificate, she was told that she had to wear a face mask. She said that it was terrifying and stressful for the security guard to stand over her and to tell her that she should go downstairs. Another patient told her ‘just put on a mask’ and she had not wanted to explain to this stranger. She told the security guard that she was exempt from having to wear a mask. Her 83-year old mother remained upstairs and attended the GP appointment without her. The complainant was seeking an apology. In reply to the respondent, the complainant rejected that she had had an argument with the other customer. 

The respondent outlined that it is a GP practice on the first floor of a primary care centre. The complainant had attended on the 30th April 2021 with her mother, and it was a busy day. No service was denied to the complainant and there was no discrimination. The practice manager gave evidence. She outlined that she entered the waiting room on hearing raised voices. The complainant was interacting with another patient in the waiting room regarding her not wearing a mask. The HSE porter came over and suggested to the complainant that she wait downstairs, which she did. 

CA-00044968-001

This case relates to the events of the 30th April 2021 and to attendance at a GP clinic and the administration of a booster Covid-19 vaccine to elderly and vulnerable people, including the complainant’s mother. The first Covid-19 vaccines had only been administered to patients in December 2020.

I accept that the complainant could not wear a face mask for health reasons. I accept that the complainant had previously attended the GP clinic and not worn a face mask. I accept that she raised her exemption with the respondent, specifically the practice manager. For the purposes of assessing the case, I accept that the GP clinic is vicariously liable for the actions of the HSE employee who asked the complainant to go downstairs.

Taking the complainant’s case at its height, there was no discrimination or harassment on grounds of disability. It was not disputed in this case that Covid-19 is an infectious disease which is transmitted through the air. It was also not disputed that face coverings provide protection against the transmission of the disease.

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.’

Statutory background – Equal Status Act

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms:

‘4. (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) 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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.’

Section 11 addresses harassment, which is defined in subsection (5) as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.’ A notice posted in a premises could, therefore, clearly constitute harassment.

Application of the law to the facts

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonableness in this case must take account of the pandemic. This must take account of the fact that GP practices and other settings were open for members of the public to attend, including vulnerable groups. It must also take account that the premises were only able to open because employees attended work, irrespective of the risk to them and their households, and they also accommodated other patients, there to receive a vaccine.

Section 4(4) refers to ‘harm’ and it was not disputed in this case that Covid-19 could be a fatal disease that also caused long-term debilitating consequences, at least for some. It was also not disputed that face coverings reduced the transmission of the disease, and therefore, dissipated harm.

It was entirely reasonable for the respondent to mitigate the risk posed to elderly and vulnerable patients attending an enclosed and busy setting that people wear masks. Irrespective of the complainant’s circumstances, taking account of reasonableness and the risk of harm, the respondent did not discriminate against the complainant by asking that she wear a mask or even insisting on it, given the public health risk and the risk of transmission of the disease. There was, therefore, no prohibited conduct.

CA-00044968-001

I decide that the complainant was not discriminated against on grounds of disability and nor was there any prohibited conduct.

Equal Status Act / mask