Complainant

Respondent

Parties

Kamila  Pietrzyk

G. Bruss Gmbh Dichtungstechnik

Representatives

Vernon Hegarty SIPTU

Terry MacNamara IBEC

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-00046083-001

10/09/2021

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 her disability to ensure that she had access to employment. The issues between the parties are related to a requirement from December 2020 that the Complainant wear a mask in specified areas of the workplace and at specified times within the employment versus her contention that she has a medical disability which prevented her wearing a face covering; that she was discriminated against in being denied access to employment due to that disability and that her requests to work without such a covering should have been accommodated by the Respondent, her now former employer.

The Complainant commenced employment with the Respondent on the 28th of July 2017 working as a production operator until late November 2020 when the issues concerning mandatory mask wearing within the employment arose. The Complainant worked in a room separate from the main production area with two or three other colleagues on a nonrotating nightshift. On the claim form the monthly rate of pay was given as €2534 gross monthly pay.

The following is the summary of the written and oral submissions by the union on behalf of the Complainant at and post the hearing in additional written submissions sought on specific issues.

The Respondent is a manufacturing company producing precision components for the automotive industry. It is one of the largest employers in Sligo with over 200 staff. The

As part of a series of actions taken in respect of the Covid-19 pandemic the Respondent introduced the company policy (EHS Policy – Face Covering) dated 11/11/20 issued on 19/11/20. That policy provided for:

“Mandatory face coverings in all communal areas, when transiting to and from your workstation, when you are unable to maintain 2m physical distance from a colleague and when away from your designated workspace.”

This policy applied to employees, visitors and external contractors. The policy further provides that face coverings did not need to be worn in the workplace when employees are at their designated workstation, when eating or drinking, outdoors, when maintaining 2m distance from others, or when remote working.

Through the week of November 30 to 4 December 2020 the Complainant had tried to explain to her supervisors that she could not wear a face covering due to a medical condition.

On 4th December 2020 the Complainant attended an occupational health assessment in what was described as a “Covid triage call” with an external occupational health assessor. The representative cited the following extract:

“Recommended interventions that may assist in her addressing past traumas that may or may not improve her declared symptoms associated with the wearing of face coverings.”

The Complainant was excluded from work at that stage and took certified sick leave from 7th December 2020 due to distress. She remained out of work, initially on sick leave and, from August 2021 on unpaid absence after she was certified fit to return to work but was not permitted to return when she was not wearing a face covering. She claimed illness benefit for a period. In March 2022 the Respondent did advise the Complainant that she could return to work without wearing a face mask. By then, the Complainant had secured alternative employment commencing in September 2021 and did not return to work in Bruss.

On 19th January 2021 the Complainant attended an “absence review meeting”. She suggested alternative arrangements, but the Respondent did not feel that she could be allowed any exemption from the mandatory provisions save wearing a face visor or shield, in lieu of a mask. It was made clear to her that she could not work if she did not comply with the mandatory provisions introduced.

On 17th February 2021 the Respondent wrote to the Complainant outlining their position on her continuing absence from employment including their conclusion that any accommodation of her briefly passing through communal areas would require that they “...provide you with a separate toilet, walkway and rest/canteen services and that this was not reasonably practicable.” The Respondent reiterated the earlier advice from the occupational health assessor that she “follow the doctor’s recommendations so that you may be able to return to work.”

The following is a direct extract from the SIPTU submission on behalf of the Complainant:

“Desperate to be allowed to go to work, at this time the Complainant became somewhat confused as to what the exact legal position was as regards face masks/coverings in the workplace. There were many online sources which were spreading ill-informed views on the supposed “rights” of persons to unreasonably disregard any provisions on masks and other Covid related restrictions. However, the Complainant did submit a legitimate “right to information” E.E.2 form under section 76 of the Employment Equality Acts (though incorrectly citing the Equal Status Act in the content). The Respondent submitted their responding E.E.3 dated 30 March 2021. Attention was drawn to the Respondent’s E.E.3 response in which they again reference the occupational health advice to “treat her own disabling condition”; treat any exemption from the mandatory face covering as necessarily representing a fundamental breach of their duties under the 2005 Act to provide (so far as this is reasonably practicable) a safe workplace for their workers, and therefore unconscionable, and cite the “risk assessment” as being determinant and “the basis” on which they ground their decision in the matter.”

In April 2021 SIPTU took on representation for the Complainant and attempted thereafter to arrive at a resolution which would take account of both the Complainant’s requirement of an accommodation in respect of her disability and at the same time addressing the concerns of the Respondent in minimising risk, as far as reasonably practicable of infection of staff (including the Complainant). Repeated representations were made proposing what it was felt would be reasonable accommodations in the employment. These are summarised as follows:

a. minor adjustments to patterns of her working time (earlier/later shift start and end times, working on alternative shifts where “communal” traffic is reduced in the employment, assignment to different tasks, etc.)

b. The use of rapid antigen tests so that she might mitigate the risk of infecting others.

c. A combination of a and b above.

It was highlighted to the Respondent that the Complainant was not in the habit of taking her breaks in the canteen (she went outside to her car) so any notion that this was a difficulty was not relevant and that she could similarly be careful to navigate her way through communal areas of light traffic (on the night shift) where she could avoid coming within 2m of others, whether going to the toilet or outside.

The Respondent rejected these proposals on grounds which are set out in the Respondent’s summary of position. Subsequently following a failure to reach a reasoned resolution in the matter a formal grievance was submitted on 26th July 2021. All aspects of the dispute were addressed and the leading case on reasonable accommodation at the Supreme Court was also shared with the decision maker.

On 6th August 2021 the Respondent decided that they had already made a reasonable accommodation and did not uphold the grievance, again citing the determining nature of the risk assessment, the “medical advice” and the fear that any exceptions to a rigidly universal approach of the strict provisions of the [mask wearing] Policy “may put us in breach of the Safety, Health and Welfare at Work Act”.

The case submitted on behalf of the Complainant is that she was discriminated against by the Respondent in being excluded from access to her employment in circumstances where there were reasonable accommodations available to them which they elected to unreasonably discount.

It was submitted that the Complainant’s condition constitutes a disability under the definition of the Acts and that this has been accepted by the Respondent throughout the process.

Reference was made to Nano Nagle School v Daly [2019] IESC 63 and in particular paragraph 84 of that judgment.

It was submitted that a very marginal adjustment of the Complainant’s shift start and end times – along with her taking common sense precautionary measures and responsibility for her own movements within the workplace – would have provided effective mitigation in lieu of her being unable to take the precaution of wearing a face covering. It was submitted that this option was never seriously considered by the Respondent as they felt bound to a rigid adherence to the strict terms of the risk assessment “preventative actions” identified, and that these were considered determinant in every case even when it led to a discriminatory exclusion from work. It was submitted that this stance was in direct breach of the provisions of section 16(3) of the Act.

It was submitted that it was unreasonable for the Respondent to hold out that the use of face coverings in communal workplace areas is only one mitigating action that can be taken to reduce the risk or likelihood of infection between persons and that it should not be taken as being effective on its own or without being combined with other sensible mitigating actions (washing hands, social distancing, maintaining workplace surface hygiene etc.). The stance of the company in rejecting any alternative proposals was based on a potential failure to guarantee or ensure that all risk is eliminated or prevented when the intermittent wearing of a face mask does not itself provide such a guarantee. It was submitted that the medical advice referred to by the Respondent is expressed in ever increasingly exaggerated terms (citing prospect of “death” and “saving lives”) to arrive at a single conclusion, one of which references the Respondent’s duty (if any) under the Employment Equality Acts. The Complainant was accepting a degree of risk within their own policy albeit taking all practical measures to reduce that risk. However, the Respondent’s position as regards the Complainant was both “irrationally and singularly absolutist”. To hold out that someone must be denied access to employment (in a workplace where no one wears a face covering except during a very brief period of their working day) because they cannot be accommodated in arranging circumstances where they can reduce the likelihood of finding themselves within 2m proximity of others (fleetingly) is draconian and unwarranted.

It was submitted that the company’s rejection of antigen testing was equally misguided based as it was on the conclusion that the measure could only be effective if everyone else in the workplace took such tests.

In conclusion it was submitted that there is no question that effective measures in reasonable accommodation were available to the Respondent at the time and that when rationally considered they did not constitute a disproportionate burden being placed on them as conceived under Section 16 of the EEA.

The Complainant’s witness evidence

As previously stated, the substance of this case was made out on both sides through written and oral submissions by the representatives at and post the hearing. Sworn evidence was given by the Complainant in relation to one question which arose at the hearing which was when the Complainant informed the Respondent that she had a letter from her GP regarding a medical disability and that she was unable to wear a face covering. This issue arose because in the Respondent submission they had included a medical certificate dated 21st December 2020 which certified that the Complainant is “unable to wear face covering due to her medical condition.” This contradicted the Respondents written assertion that medical evidence of a disability which resulted in her not being able to wear a face covering was not provided by the Complainant until June 2021 by a consultant psychiatrist.  Following a break and a discussion with their client IBEC advised that the document in question was a copy of what had been included by SIPTU in their submission and consequently it was necessary to take evidence as to whether the document in question was provided to management at the review meeting in January 2021. The Respondents position was that they did not have a copy of that GP certificate. In her evidence the Complainant stated that she offered the GP letter in question to the Respondent representative at the absence review meeting in January 2021 who stated that she would not take it, that they had their own report from the company doctor – occupational health. Under cross examination, the Complainant agreed that she did not refer to that certificate and having provided that certificate at the meeting in any subsequent written communications.

At the hearing, the Respondent agreed to provide the internal communications following the absence review meeting(see also witness evidence on the Respondent side).In the Complainant’s post hearing submission, referring to the document submitted by the Respondent SIPTU wrote that, at a minimum the Complainant informed the Respondent at the meeting on 19th January 2021 that she had a letter from her GP, and this was confirmed by subsequent internal management communications following that review meeting.

In response to the precedent cited by the Respondent, ADJ-00034159 Graham Burke v Total ICT Services, it was submitted that the facts of that case differ from the current case in that a prima facie case had not been established, that the complainant’s exclusion in that case was not decided upon by the respondent. SIPTU rejected the AOs interpretation in that decision of what constitutes a comparator for the purposes of the Act on grounds that the decision in question appears to invert less favourable with more favourable treatment which is contrary to the legislation.

On the question of loss, clarity on which was sought from the Complainant, it was submitted post that the loss attributable to the action of the Respondent dates from 7th December 2020, the date on which the Respondent excluded the Complainant from access to employment through to the Respondent offering a return to employment without wearing a mask on 7th March 2022 by which time the Complainant had obtained alternative employment on 8th December 2021. Details of the losses in Bruss related to the complaint and the earnings from the second employment were provided in the supplementary submission. Details of social welfare benefits received in the relevant period were also provided with the supplementary submission. In seeking compensation, it was submitted that it would be appropriate that the effect of the discriminatory treatment by the Respondent be taken into account in fixing any compensatory award given that she arrived at the point where she could no longer countenance continuing in the employment such was her distress at her exclusion from it and the uncertainty as to whether she might have to revisit the same set of circumstances in future in the employment. Payment of medical expenses of €690 incurred were also submitted for consideration as part of the claim for compensation.

The Complainant is claiming breaches of the Employment Equality Act on the grounds of discrimination related to a disability and failure of the Respondent to provide reasonable accommodation, i.e., to allow her to remain at work when she could not wear a mask due to a medical condition, alleging that this was a breach of the Act. The Respondent rejects that any breach of the Employment Equality Acts occurred.

The incidents relating to this claim occurred during the Covid-19 pandemic in November of 2020 and it is important to note that at that time there were no vaccines available in Ireland. The Respondent gave details of the challenging time that existed in the relevant period related to the efforts to contain the spread of the Covid virus. There was a particularly significant increase in Covid-19 figures between October and December 2020. Level 5 restrictions were introduced on 21 October 2020 and remained in place for six weeks. This was the period when the issue of the Complainant’s refusal to wear a face mask at work emerged. While the Level 5 restrictions did ease in early December 2020, they were reintroduced on 24 December and remained in place for several months.

The Government developed a work safety protocol designed to identify measures needed to ensure the safe operation of workplaces. It was first published on 20 November 2020. A statutory instrument was introduced identifying mask wearing as a key measure to supress the spread of the virus and save lives. On 23 November 2020 the Respondent introduced a face covering policy having given a week’s grace for all employees to get prepared for wearing a mask which would be mandatory from 30 November 2020. This decision was based on its risk assessment which was approved by management, the health and safety committee and the company doctor. As part of this policy masks were only required to be worn when moving around the factory premises as the risk analysis identified the likely prospect of coming within two metres of colleagues and social distancing could not be guaranteed in these environments.

The Complainant was on an annual leave from 23 November to 27 November 2020. On her return on 30 November, she refused to sign off on the face covering policy. This was reported to the Production Manager who met with the Complainant that morning. At that meeting she stated that she had a medical issue that she did not want to discuss. She was informed that she needed to sign off the policy and the company would look into the details of her issue. She was also advised that no decisions could be made if she was not willing to discuss the matter.

The Respondent arranged for the Complainant to attend the named company occupational health consultant. On 3rd December 2020 the Complainant met with her supervisor again and agreed to sign off the policy as a way of being able to proceed with her work but stated that she did not agree with the policy. On 4th December 2020 the Complainant took part in a phone consultation with the company doctor whose assessment was as follows:

“This lady participated in a Covid triage call today. I understand that she has declined to wear a face mask in the workplace. Ms Pietrzyk declared no underlying medical conditions and appears to be in good health. She tells me that she suffers symptom of stress when wearing a face covering and that she associates this with a past trauma. I am not in a position to verify this. I have recommended interventions that may assist her in addressing her past trauma that may or may not improve her declared symptoms associated with the wearing of face coverings.”

The Complainant rang in sick on Monday 7th December 2020 and submitted medical certs up until approximately the end of August 2021 and was then on approved absence unpaid.

The Complainant attended an absence review meeting on 19th January 2021 at which she met with the company Health and Safety Manager and after very detailed discussions because of the position the Complainant had taken in refusing the wearing of a face covering she was informed that the company could not allow her to return to work without the use of face covering as per policy as this would pose a health risk to her fellow employees.

In terms of reasonable accommodation, the Complainant was given the option to wear a visor instead, but she refused this option also. It was submitted that it would only be necessary for the Complainant to wear a mask when moving about the premises and not at the workstation as the 2M spacing could be guaranteed while she was at her workstation.

During this meeting the Complainant questioned the law on the matter as it applied to this employment and she was informed that the Safety, Health and Welfare at Work Act 2005 to 2015 provided that the employer has a duty of care to all employees to provide a safe working environment and they must risk assess hazards present in the workplace. The Complainant was informed that Covid-19 was identified as a hazard in 2020 and the company performed a risk assessment. Based on that assessment and recommendations from the company doctor and company headquarters the Respondent introduced the mandatory wearing of face coverings in communal areas. It was explained the measure was introduced for the provision of a safe working environment for all employees. In response the Complainant stated that she could observe two metre social distancing and that she should not have to wear a face covering if she were keeping a two-metre distance and if this was not possible plexiglass should be installed. The Health and Safety Manager stated that in communal areas this would be exceedingly difficult to adhere to as several other colleagues were using the area and that a face covering is recommended in these communal spaces.

At that meeting the Complainant was advised that it had not been possible to identify an alternative working process for her to complete where the use of a face covering was not required as they would have to provide her with a separate toilet, walkway, and rest/canteen services and that this was not reasonably practicable in a workforce of more than 200 people. It was also stated that the Complainant would present an increased risk to her fellow employees as she was unable to wear a face covering in public settings and therefore was more likely to contract Covid-19 and possibly bring it into the workplace.

On 21st January 2021 the Complainant emailed the Health and Safety Manager following up on their meeting on the 19th and asking that she confirm that she told her that she cannot come back to work until she would be wearing a face shield or visor. The Health and Safety Manager replied to that email:

“In relation to the hazard of Covid-19 we have introduced as a control measure a policy where a face covering must be worn in communal areas and when moving to and from your workstation. You have said you are unable to wear a face covering due to a past trauma, following a consultation with our occupational doctor we have offered you the possibility of wearing a company issued face visor/shield as an alternative to a face covering. During the meeting you declined this offer We are not in a position to allow employees to attend work without wearing a face covering or in your case a face visor.”

In or around 10th February 2021 the HR Manager received a phone call from a named person acting as a representative of the Complainant stating that he knew a lot about the law and referring to the company’s illegal policy on the wearing of face coverings. The HR Manager refused to engage in discussion other than with the Complainant or her union representative. IBEC submitted that it was subsequently discovered that the named person was a well-known campaigner against Covid-19 related restrictions and mask wearing and had accused the Government and media of lying on these issues, also campaigning on issues such as Covid-19 restrictions and alleged radiation threats from phone masts. On 11th February 2021 the Complainant contacted the HR Manager again querying the legality of the company policy on face coverings. He explained the Respondent’s position to her again and followed up on this in writing on 17th February 2021 in a letter in which he stated that the Respondent

“...has a duty of care to all employees to provide a safe place of work. Government and WHOs general guidance are that face coverings should be worn in indoor places where social distancing may be difficult. ...So, you only have to wear a face covering for a very short period of your working day.”

The note continued that they were unable to implement any additional measures as reasonable adjustments and while you remain unable to wear a face covering, we cannot allow you to return to work.

On Wednesday 24th February the Complainant again emailed the H&S Manager seeking information on who drafted the factory guidelines, their name, a copy of those factory guidelines. Several emails were exchanged during which it was submitted that the main issue of concern appeared to be the legality of the policy and wanting to know the name of the person who had drafted that policy.

The Complainant submitted a form EE2 on 2nd March 2021:

“I am unable to wear a face covering because this disables me. The reason for this disablement is a very private and personal... because of this discriminations and stress my health is being affected. This is now criminal. Causes me severe distress, loss and injury and I will be seeking private prosecutions under the law to the responsible person.

Because of my disablement my rights to this cannot be discriminated against by a company policy that is clearly in excess of the law and therefore has no legal standing. I have a right to bodily autonomy under the Irish constitution, any enforcement of a discriminatory factory policy can and will be acted on a court of law”.

It was critical to note that the Complainant did not submit any information relating to the alleged disability at this stage and the company were acting on the medical advice of the company doctor. [See also the summary of the Complainant’s case and witness evidence on this point]. The Respondent replied to the EE2 on an EE3 Form.

On 10th April 2021 SIPTU approached the HR Manager on behalf of the Complainant stating that the Respondent had

“...too readily dismissed the basis of the Complainant’s aversion to the use of face coverings and effectively washes its hands of any responsibility towards the employee in recommending she privately seek appropriate interventions that may or may not alleviate the symptoms associated with wearing face coverings.”

IBEC submitted that this was an erroneous assertion as the Respondent had entered into extensive consultation with the Complainant in order to try and address the issue acting at all times on medical advice from the company doctor and health and safety experts. Again, it was stated that at this juncture no medical evidence had been submitted by the Complainant to support any medical condition which would prevent her from wearing any face covering.

SIPTU put forward four suggestions summarised as: taking breaks at different times to reduce close contacts; to consider rapid antigen tests for her; seeking as an alternative an agreement on discretionary extension of the provisions of the sick pay benefits; maintaining her on leave for the duration of the maintenance of the face covering policy or any other accommodation which the employer may consider reasonable in the circumstances. Replying to the union the Respondent advised that they had already looked at the possibility of staggering breaks and different times but concluded that it would be near impossible to ensure that close contacts did not take place; that they were medically advised that an antigen testing solution on an individual basis was not deemed a fitting solution considering the logistics of safety testing including no internal competence to assess who would manage giving the tests, that the test was quicker but less reliable than PCR, and that for these and other reasons this solution would only be a suitable solution on an organisation wide basis and the cost of this across a workforce of 220 persons would be prohibitive. All of these issues were raised in consultation with appropriate medical advice. The Complainant had already availed of the company sick pay allowances and had then been absent for four months and the Respondent was not in a position to pay her further allowances especially when there was no prospect of return to work in the short to medium term. In terms of any other accommodations which the Respondent might consider reasonable in the circumstances they had already looked and tried their best to find alternative arrangements or other possibilities but could not see any however they were open to any further suggestions.

On 18th June 2021 SIPTU wrote to the HR Manager informing him that the Complainant had attended a consultant psychologist in respect of her condition and attaching a letter from the consultant confirming her condition and its implications with regard to wearing face coverings.

On 22nd June 2021 the HR Manager responded:

“The company wish to make it clear that we do not doubt Ms Pietrzyk’s problems with wearing a face covering and this is not the main issue for us. Our duty of care to all our employees is uppermost in our minds and we are following public health and Government rules and guidelines plus advice from our company doctor to ensure this. We will however consult again with the company doctor regarding the points you have raised and we will respond accordingly.”

Following consultation with the occupational health advisor on the 29th of June the Respondent wrote to SIPTU:

“After seeking advice from our company doctor on this matter he outlines that in order to have some level of safety, antigen testing would have to take place every day that Ms Pietrzyk was at work. He also advises that in order to protect her all our other employees would need to be tested on a daily basis too. Even if this were done he could not guarantee that Ms Pietrzyk or other employees might not become infected or infectious and spread the virus easier because of not wearing a face covering. Therefore, we will not be taking this course of action and will continue to follow the HSE and Government advice around the mandatory wearing of face covering for all of our employees.

As per my previous mail we do not question Ms Pietrzyk’s condition around her inability to wear a face covering but our duty of care to her and to all our other employees must take precedence.”

Subsequently the grievance procedure was initiated on behalf of the Complainant and the hearing took place on 30th July 2021 with an outcome issued on 6th August 2021. The summary of the report highlighted the efforts the Respondent had made in consultation with the Complainant to reasonably accommodate her but concluded, “because of the constraints of the situation there is nothing further that can be done.”

The Respondent received a fit to return work cert on behalf of the Complainant on 26th August 2021 to which a reply was issued stating effectively that she could not return to work due to her continued inability to wear a face covering. She was then placed in the category of approved unpaid absence. On 10th September 2021 the Complainant submitted a complaint form to the WRC.

Response to the complaint.

The Complainant initially alleged that because of a disability that she was exempt from wearing a mask under SSI 296 of 2020 and related legislation.

Later this was presented as an obligation on the company to reasonably accommodate her by permitting her to attend work without wearing a mask.

At a later stage the Complainant also submitted that the Respondent should have made other accommodations in terms of the introduction of antigen testing and altering the workplace and shift schedules so that the Complainant would not be in close (less than two metres) proximity with her colleagues during her working hours and this failure to reasonably accommodate her resulted in her not being permitted to remain at work due to the failure to wear a mask at work.

IBEC referenced section 16(3) of the Act and the application of this section had been tested in the Supreme Court in Nano Nagle v Marie Daly.  Multi Roofing Systems Ltd v Boguslaw Madajczyk EDA2140 where the Labour Court referred to the Supreme Court decision and in particular the statement by McMenamin J was cited. Also cited was the Health Service Executive v Ms Monica McEntee, EDA2126 in which the Labour Court held inter alia that section 16 of the Act does not impose an obligation on an employer to create alternative work for an employee with a disability – the obligation is merely to provide appropriate measures (that do not impose a disproportionate burden on the employer) that can facilitate an employee with a disability to fulfil the requirements of the job for which they have been hired. It was submitted that there was no obligation on the Respondent to find the Complainant an alternative job. She worked in an auto component manufacturing site where she was in continuous close contact with work colleagues. Referring again to the Supreme Court in Nano Nagle v Marie Daly and United Parcel Service of Ireland v Kevin Roberts, EDA2136, it was submitted that these decisions show that the employer must (1) demonstrate that efforts were made to see if the worker could be facilitated (2) seek to consult with the employee on the matter (3) investigate what, if anything, could be done to facilitate the worker in relation to her job. The Respondent has complied with all of these obligations, however ultimately appropriate measures were not possible in this case. It was submitted that the Respondent also has an obligation to protect the safety, health and welfare of all individuals on its premises citing Article 2(5) of the Employment Framework Directive which covers “disability” as one of the grounds of discrimination and which states:

“The Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.”

The Safety, Health and Welfare at Work Act 2005 sets down the obligations for both employers and employees for the protection of safety, health and welfare in the workplace. Referring to section 19(1) of the Act:

“Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a “risk assessment”) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions”.

Having identified Covid-19 as a specific hazard the Health and Safety Manager conducted a risk assessment in association with medical advice and public health guidelines identifying measures including the wearing of face masks to mitigate against this risk. Section 8 of the Act refers to the general duty of employers to protect as far as reasonably practicable the safety, health and welfare of its employees including managing and conducting work activities; implementing safety, health and welfare measures; where risks cannot be eliminated or adequately controlled providing suitable protective clothing and equipment as is necessary.

General principles of prevention linked to section 8 are set out in Schedule 3 of the Act. One of these principles reads: “The giving of priority to collective protective measures over individual protective measures”. This principle is transcribed from Article 6(2)(h) of the Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC). Thus, the Respondent could not give different treatment to the Complainant vis-à-vis her work colleagues in relation to its obligation to protecting the safety, health and welfare of employees. Referring to the suggestions made on behalf of the Complainant it was submitted that these were considered in consultation with the Complainant and her representative in addition to up-to-date medical advice and guidance from the qualified Health and Safety Manager. These are the resources which were best placed to give competent professional expert advice in the areas of occupational health and health and safety and the Complainant’s suggestions were not considered adequate to remove the risk of an unmasked worker moving in communal areas during a worldwide pandemic. In these circumstances the Respondent had no other option but to remove the Complainant from the workplace.

The obligation to reasonably accommodate an employee to access work is subject to certain limits. The Respondent engaged with the employee in November 2020 on the requirement to wear a face mask however the company was not aware of the Complainant’s specific disability until it received a medical report on 18th June 2021. Having received the report in June the Respondent again investigated if the Complainant could be facilitated at work by taking appropriate measures. No effective or practical measures to deal with the issue were identified. While the Respondent was not obliged to seek an alternative role for the Complainant it did consider this for her, but none was identified that could be conducted without the wearing of a face mask. The Respondent is required to protect the safety and health and welfare of all staff. This was recognised by the Complainant’s own representative during consultation. The company made huge efforts to minimise the risks to staff during the Covid-19 pandemic. The Complainant was the only employee who expressed a difficulty with wearing a mask in the workplace. During the course of the hearing the potential impact on other employees also seeking the right not to wear a mask was referenced by the representative.

Witness evidence on behalf of the Respondent.

As can be seen in the summary of the Complainant’s case, an issue arose at hearing regarding the notification by the Complainant of medical advice regarding a disability which prevented her wearing a mask and when this first occurred. The Complainant gave evidence that she offered her GP’s medical report to the Respondent and in particular Ms Deirdre McNulty at the attendance review meeting in January 2021 but they declined to take the document.

Deirdre McNulty, the EHSM in the Complainant’s employment, gave sworn evidence at the hearing on this point. The witness stated that she does not recall an offer to give a particular medical certificate regarding an inability to wear face coverings. The Respondent already had medical certificates on file from the Complainant at that point which referred to a medical illness. In discussion with the witness there was a reference to an internal email which she would have sent following that meeting summarising the outcome of the meeting and she undertook to provide that document through her representative, and it was agreed that this would be forwarded to the Complainant as part of the items on which they were to make a supplementary submission.

Post the hearing an email from Ms McNulty to the HR Manager immediately after the return to work/absence review meeting on the 19th of January was submitted together with a copy of medical certs submitted by the Complainant together with a copy of a “legal memo” submitted by the Complainant during the return to work meeting on the 19th of January and a copy of the absence management record sheet, the return to work/absence review meeting held on 19th January 2021 signed by the night shift supervisor. Her recollection was of a document at that meeting described as a legal memo which was submitted by the Complainant during the return to work meeting.

In response to a question from the undersigned the witness advised that the total amount of time in the 8-hour working day where the Complainant would or could be in less than 2 metres of contact with other employees and required therefore to wear a mask would be in a series of periods amounting to 40 minutes in total. 

For the record the following are the first three points of the bullet points of Ms McNulty’s note of the meeting of 19th January 2021:

“•    Employee claims she is stressed as a result of the introduction of face masks and that 9 of her colleagues have complained about her not wearing a mask.

 •     Kamila has a cert stating “medical illness” but disclosed that she is stressed and unable to sleep due to worrying about work and wearing a mask and the complaints about her at work.

 •     Kamila has a letter from her GP stating that she has an exemption to wear a face covering. She confirmed that the exemption is not because of a physical affect of the face covering – e.g., breathlessness or breathing difficulties.”

In response to a question from the undersigned the witness advised that the total amount of time in the 8-hour working day where the Complainant would or could be in less than 2 metres of contact with other employees and required therefore to wear a mask would be in a series of periods amounting to 40 minutes in total. 

In response to the SIPTU statement of loss of earnings and receipt of illness benefit to be considered as part of an award of compensation, IBEC replied referring to the guidelines of the Department of Social Protection which outline qualifying conditions and in particular that a claimant must be unable to work through illness. At no stage was any illness rendering the complainant ‘unable to work or look for work ‘attributable to the actions of the Respondent.

As can be seen above the summaries of the case presented by the representatives of the parties are extensive. That this is the case reflects in part the efforts made both in the submissions and at the hearing to set out and defend the respective positions. Beyond wishing to reflect the bones of the cases presented, this case is without precedent in my experience or in the case law presented at the hearing or any previous decisions on the core issue, mandatory wearing of face coverings in the workplace which were presented or which I reviewed in arriving at this decision. What distinguishes the facts in this case from others reviewed both under the Employment Equality Act and the Equal Status Act where many cases have been decided by Adjudication Officers, is the fact of a disability being not only claimed but being evidenced in this case and that disability being accepted by the Respondent, or at least not disputed by medical evidence.   Other legal decisions reviewed, both here and in the UK in workplace situations involved customer facing roles or lacked medical evidence to support a refusal to wear a mask, or both.  Equal Status complaints in this jurisdiction where reasonable accommodation was unsuccessfully claimed in the majority of cases, in the main, lacked medical evidence to support the disability claimed and/or that evidence was not offered or presented to the relevant service provider.

Although not a case relying heavily on legalistic arguments on either side, essentially the parties have presented competing legislation to justify their position and the expressed reasonableness of their respective positions. The Complainant seeks to rely on the Employment Equality Act whereas the Respondent seeks to rely on their obligations under the Health and Safety Act which are presented as effectively negating any possible discrimination on the protected ground or characteristic of disability.

My role is to decide the case based on the facts and arguments presented in the context of the legislation. Set out below are the sections and subsections of the Act which were applied in arriving at a Decision.

Cognisable Period

The complaint was received by the WRC on 10 September 2021. SIPTU contends that the period covered by the complaint dates back to the date when she was first informed that she could not attend work without wearing a face covering and that the act of discrimination and any calculation of compensation should be considered as commencing on that date i.e., 7 December 2020 through to March 2022 when the complainant was informed that she could return to work without wearing a face covering. The following are the relevant extracts from Section 77 of the EEA.

The forum for seeking redress.

77.— (1) A person who claims—

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term, or

(d) not to be receiving a benefit under an equality clause,

in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission.

And

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of thecontract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when the person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

I am satisfied that the act of alleged discrimination falls within the cognisable period of six months as required by Section 77(5) in that if it were found that the Respondent discriminated against the Complainant, that discrimination was ongoing throughout the period and indeed did not end until sometime after the complaint was submitted to the WRC.

Definition of Disability in the EEA

“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;

The disability described by a consultant on 18 June 2021 PTD as an anxiety disorder is consistent with the terms of subsection (e) above and therefore falls within the definition of a disability under the EEA. That the Complainant had no disability, or none which prevented her wearing a face mask was never established by the Respondent or their occupational health adviser either in January 2021 or in response to the medical opinion of June 2021. From the internal management report following the absence review meeting of January 2021, evidently the Complainant offered the Respondent her own medical advice concerning her disability, but this was not taken by the Respondent and not sent to the Occupational Health doctor for his consideration. This point is important as it negates the assertion in the IBEC submission that the report of June 2021 was the first notification to the Respondent of a disability. This point is also important because, back in January, the Occupational Health adviser, stated that he was not in a position to confirm the Complainants statement to him ‘that she suffers symptoms of stress when wearing a face mask’. However, had he been provided with the GP Report after the review meeting in January 2021, he would at least have had the Complainants GPs opinion and he might have been in a position to obtain further medical information from that source. One way or another he could have provided a definitive medical opinion to the Respondent on the Complainants claim of a disability.

 In response to the Consultant’s report in June 2021, the Respondent conceded that they accepted that the Complainant had a ‘problem’ wearing a mask. This term was at best ambiguous but as they did not reject the medical evidence supplied at that time, it is reasonable to conclude that they accepted that the ‘problem’ was that the Complainant did indeed have a disability which meant that she could not comply with their insistence that she wear a face covering at specified times and places in the workplace.

In conclusion on this point, it is accepted that from December 2021 the Complainant had a disability for the purposes of the legislation as defined in section (e) of the interpretations within the EEA. Furthermore, it is accepted that the Complainant offered medical evidence of her disability to the Respondent in January 2021, and she provided additional medical evidence to the Respondent in June 2021. The medical advice which the Complainant provided clearly stated that she had a disability which prevented her wearing a face covering.

Comparator

6.— (1) 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,

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;

“C” is the Complainant. She had a disability which existed at the time i.e., December 2020 until March 2022. The Respondent position is that Complainant was the only person who made a case that she could not wear a face covering on any grounds, including presumably, a disability. It follows therefore that  was treated less favourably than any person who did not have a disability or the same disability in that, due to the effects of her disability she was prevented from attending at work and therefore found it necessary to take first sick leave and was later placed on unpaid leave on grounds of her disability and, when she placed on unpaid leave, she first claimed illness benefit from the State and then sought alternative employment by way of securing an income.

        In the interests of clarity on this point, it is not necessary for the Complainant to name a particular comparator. It is well settled that in cases involving less favourable treatment, a comparator can be actual or hypothetical. A hypothetical comparator can be constructed by asking why the complainant was treated the way she was. If the treatment complained of was because of a protected characteristic (disability in this case), a hypothetical comparator is one that does not have that characteristic.

       In the circumstances of this case, the Complainant has met the comparator test as set out in the EEA.

Discriminatory Treatment

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

   an employer shall not discriminate against an employee or prospective employee and a    provider of agency work shall not discriminate against an agency worker.

8-(1) (a) denial of access to (her) employment when she would not wear a face covering is the relevant subsection of section 8 which applies in this case in so far as the denial of access was the result of the Respondents insistence on the Complainant wearing a face covering at specified times situations.

Indirect Discrimination

Article 2(2)(b)(i) of Directive 2000/78/EC provides that an indirectly discriminatory PCP is unlawful unless: - “that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

The principles set out in the Directive applies to any of the protected grounds, in this case a disability. Having carefully considered the available evidence and documentation the conclusion is that the mandatory provision requiring that a face covering be worn by all employees in Bruss falls for consideration as potential indirect discrimination, given that rule had a disproportionate effect on any person with a disability who could not comply with the provision. There can be no doubt that in December 2020 the Respondent introduced a measure requiring face coverings as a health and safety condition in the interests of their employees and members the wider community who might have been affected by contracting Covid. In other words, the Respondent meant well in their endeavours. Whether such an aim was legitimate in requiring that the provision be mandatory even for someone with a disability is highly questionable. Account is taken of the emphasis by the Respondent on the position in Ireland as a whole in December 2020 as being at level 5 at a time when the public health risk was high. However while the Respondent referenced that level continuing for some months after December 2020they did not claim that level 5 status continued until March 2022 a full fifteen months later albeit the requirement to wear masks in public places remained. However, if the greater good principle is accepted as legitimate, the question then remains whether the means of achieving that objective in the case of the Complainant who had demonstrated she had a disability and unable to comply with the mandatory provision, was appropriate and necessary. In terms of being an appropriate measure of itself, the Respondent had medical and other professional advice that wearing a face covering along with other measures, based on public health guidelines represented the optimum means of preventing the spread of Covid within the workplace and therefore as a preventative measure, requiring the workforce to wear a face mask was an appropriate measure to achieve that end.

The final part of the three-part test for indirect discrimination is well established and commonly cited from the judgement Bilka-Kaufhaus GmbH v. Weber Von Hartz

In this case the Court set out a three-tiered test by which an indirectly discriminatory measure may be justified. It said that the measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate” to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective.

“It should only succeed where, on the principle of proportionality, the discriminatory effect of the impugned measure is clearly and unambiguously outweighed by the legitimate aim which it is intended to achieve.”

Having demonstrated evidence of her disability which prevented the Complainant complying with the health and safety measure imposed on the entire workforce, it is self-evident that someone with her disability was disproportionately affected compared to any other employee. She simply could not comply with the terms. The question therefore is whether the insistence on the health and safety measure in her case was a proportionate measure in circumstances where the Complainant had a disability which prevented compliance. In deciding on this point, account is taken of the fact that the Complainant worked nights within a small segment of the workforce as a whole; she and they were able to work without the protective measure because of the 2m distance between them. The maximum potential overlap between them sometimes for periods of less than fifteen minutes at a time, was forty minutes out of the eight-hour shift. The proposals put forward by her representative, of changing her clock in times (one point of potential contact) not taking her breaks with her colleagues (a second point of potential contact) and taking care when going to and from the toilet facilities (the third point of potential contact) had the potential to reduce the maximum forty minutes by as much as half.  In rejecting these proposals, the Respondent insisted that she not attend work at all. Neither would they agree to any form of wage supplement to offset her losses.

The effect of requiring absolute compliance with the health and safety measure irrespective of her disability, was to remove the Complainant entirely from the workforce, from her position which she was perfectly capable of performing and her potential to earn her income. She resolved the problem to some extent by taking sick leave and obtaining illness benefit from the Respondent and/ or the State. These steps were required to mitigate her losses. It is not unreasonable to ask whether it was really decided by the State (whose health guidelines the Respondent was following) that a person with a disability which prevented compliance with wearing a face covering, who was not in a customer facing role should effectively be barred from their workplace and any income because they could not protect the entirety of the workforce and by extension the wider community from Covid, and all of the time.

 In adopting Government guidelines and applying them as a mandatory measure against the Complainant, notwithstanding her disability or rather because of her disability and removing her from the workplace entirely by not permitting her to attend at the workplace at all and refusing to compensate her in any way for her losses was I conclude, a disproportionate application of the neutral provision on the Complainant stemming from the Respondents response to her medically evidenced disability. From the contributions on behalf of the Respondent at the hearing and indeed  the statement to the review in January 2020 by the Complainant that her initial absence and illness was caused by the objections of fellow workers to her not wearing a mask, it is difficult to escape the conclusion that the avoidance of potential or actual problems with other workers in the event of a dispensation for the Complainant was a not inconsequential motivation for their in the decision of the Respondent to make no allowances for the Complainant. Or that in terms of their response and the impact on her,  that the Complainant was being made personally liable for the health of the entire workforce against the possibility of contracting a virus which was widespread in the community.

The maintenance of the seemingly neutral provision of mandatory wearing of face coverings in the case of the Complainant represents indirect discrimination on the protected ground of disability in the circumstances of this case.

Burden of Proof

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

And

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

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

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Facts have been established by the Complainant that evidence discrimination against her by the Respondent on the disability ground. The Respondent has failed to discharge the burden of proof required t establish that they did not discriminate against the Complainant on the disability ground.

Complaint re Failure to provide a Reasonable Accommodation

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

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

       Much has been made by the parties, in particular the Union of the application of Section 16 to the facts of this case. The purpose of Section 16 in its very broadest terms is to require an employer to adapt or at least examine the adaptations necessary to enable a person with a disability perform their role in the workplace when they could not do so without those adaptations to accommodate their disability. The ‘Nano Nagle’ case and others often cited were ones where the employee concerned had a long-term disability which resulted in their being unable to perform their duties without adaptation of the workplace or hours of work or aspects of their role. With respect to the Complainant representative, this Complainant was perfectly capable of doing the work for which she was engaged, a production operative. The measures which she proposed if implemented did nothing to assist her doing her job so to speak, but rather they were measures which, if implemented could have reduced the public health risk which the Respondent wished to alleviate or avert.  It was they and not she who could have taken further steps to alleviate that risk but declined to do so. I recognise that the insertion of the mandatory wearing of a face covering as part of the health and safety statement or risk assessment could be implied into the Complainants terms of employment. But if, as was found, that term was discriminatory it has no standing. Either way, the Complainant was capable of doing her job and in my respectful view the terms of section 16 do not apply in this case.

       Redress will be decided solely on the on the basis of indirect discrimination.

Redress-Section 82

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be —

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

        Having considered carefully the effects of the discrimination on the Complainant leading to her initially using her workplace sick benefit, her subsequent complete loss of workplace income, the necessity to take up another job with less benefits and the extent to which I have found the Respondent was acting on a good faith basis in the principle of what they trying to achieve in unprecedented circumstances, I consider that €10000 is appropriate recompense for the effect of the discrimination on the Complainant.

CA-00046083 The complaint of discrimination brought by the Complainant Kamila Pietryk againstthe RespondentG.Bruss Gmbh Dichtungstechnik is well founded. The Respondent is to pay the Complainant compensation of €10000.

Face Coverings-Workplace/Disability/Reasonable Accommodation/Indirect Discrimination