Complainant

Respondent

Parties

Agnieszka  Posladek

Applegreen Petrogas Ltd - amended by cosent to: Petrogas Group Limited

Representatives

David O'Riordan Sherwin O'Riordan Solicitors

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-00049521-001

05/04/2022

The Complainant represented herself at the Adjudication Hearing with the assistance of an interpreter. Both made affirmations prior to the Complainant’s evidence.

A preliminary matter arose in that the the Complainant had not indicated clearly on her complaint form or in her belated submission, the ground of discrimination on which she intended to rely.  After some consideration the Complainant said that she was relying on the disability ground in that she alleged that she was suffering from a psychological disability. Under affirmation, the Complainant gave evidence that wearing a mask caused her to experience “breathing difficulties”.

Regarding her submissions the Complainant did not dispute the events which are summarised above. However she attempted to clarify her case in a written communication dated the 17th of November 2022 the day before the hearing as follows: 

“First of all I would like to put on the record that I was working for many months prior to April 2021 in my department as the deli manager with a visor and there was no issue,

As you will see I was placed on temp layoff on the 08/04/2021 and in regular communication with the store director, now in those communications I was advised by the store director that I could not return to work unless I was to wear a mask that was relayed to him by the regional manager Lisa Brown, I proceeded to keep communication with the store director around visors as I previously stated, I even screenshots of certain visors to see if they were suitable to return to work, again I was told that Lisa Brown was to decline the offer in which I found very strange, anyway so I then received communication via letter on 05/10/2021, the letter states that I refused to wear a face mask in which I did not as I told the store director that I could not wear one but I could keep wearing my visor, the letter also states that masks should be worn by all retail staff..!! And not just certain colleagues in certain departments, the letter also states that I was to send in a doctors certification and it was to be used as a certified sick cert? Now who was going to pay me as my doctor told me I was fit to work so why would they sign a sick cert?? Also the gov HSE guidelines states that certification does not have be shown to anyone, so what law did the employer create this policy from?? When a guideline is not "LAW", I also want to make it clear I was not notified of any unauthorised absence??

So I then received communication on 01/11/2021 that my temp layoff was formally ceased and it was reiterated that I was notified of this back in April 2021 when that is when I was put on temp layoff, very strange indeed? Also it states that there was no minutes of a meeting that had taken place in April in which why would there be no minutes of a meeting if it was official? In that brief unofficial meeting I was told that the store director would get back to me after speaking with Lisa Brown about the wearing of a visor, again you will see in the whatsapp correspondence I was refused back to work without a mask and no other options were on the table. This letter also states I would be notified of a roster to return to work from the 08/11/2021 in which I did not receive?

I then received a letter on 05/11/2021 stating i was invited to a fact finding meeting on the 10/11/2021 in which was bizzare as that was supposed to be the week I was to receive a roster?? But did not receive?? Now between April 2021 and 05/10/2021 i was asked on a couple of occasions via whatsapp messages to continue some duties?

 1. Was to do a roster whilst at home and 2. Was to take some photographs from a different site and send them to the store director?? Also in this fact finding investigation meeting letter it states that it is "NOT" a disciplinary hearing but could be used to initiate a disciplinary hearing?? Very strange indeed?? So I then attended this fact finding meeting on the 17/11/2021 at 10am, I also must point out that I was allowed attend the meeting with a visor?? Another

strange one?? The questions and answers are self-Explanatory..!! What nonsense? Asking if I knew about case numbers, I am not medically trained by any governing health body nor is the fact finding investigator to my knowledge.

So after the fact finding meeting on the 19/11/2021 I received a letter of invite to a disciplinary hearing on the 24/11/2021 based on three facts??

1. Unauthorised Absence

2. Failure to comply with reasonable instruction: and

3. Failure to comply with the health & safety policy and/or covid-19 policy.

So I then attended the disciplinary hearing on the 24/11/2021 at 3pm

As you will see in the notes from the hearing the only options i was given was reduced wages and a lower role within the company in which due to personal circumstances financially and home circumstances I could not accept their terms and conditions, at this stage there was still the PUP payment in place and I believe that was also an option for the company but they seemed very eager to coerce me in to their terms and conditions.

In the minutes of the hearing they also offered indemnity in which they did not state was.

Also one major factor was there was no outcome as to whether or not I breached their 3 policies that they accused me of? My disciplinary outcome only stated reduced wages and and a lesser role.

As you can see they still tried to coerce me via email in to their terms and conditions.

As you can see I replied on the 02/12/2021.

I then did not hear anything so I emailed Lisa on the 14/12/2021 for an update, I then got a reply on the 17/12/2021 again coercing me in to their terms and conditions saying that wearing of facemasks was mandatory in food settings?? So again I politely declined their offer.

As you can see Lisa responded on the 31/12/2021 stating that they are assuming my resignation??

So I replied under no circumstances was I resigning from the company?

So two weeks later on the 14/01/2022 I had to request an update?

So then on the 02/02/2022 I received communication from Jean Marten head of HR stating that I refused to attend my employment since the 07/04/2021 when I was only put on temp layoff from the 08/04/2021 as seen in the temp layoff letter, also the communication with the store director via whatsapp messages from April state I was clearly told I was not to return without a mask and no other alternative was offered until the disciplinary action was taken, very strange indeed.

I want to add to the record how disgusting this behaviour is towards a very loyal employee who done everything I could to help the business grow..!!”

The Respondent provided a written submission

The Respondent quoted the definition of discrimination in Section 6 of the Employment Equality Act 1998 and thereafter the submission was as follows:

“It is unclear under what ground the complainant is saying she was discriminated under.

In a WRC case between an Accommodation Seeker and an Estate Agent (ADJ-00006661) the adjudication officer considered the issue of the burden of proof. The officer considered the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) wherein the Labour Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246 and stated that

“…the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent.”

In a WRC case of Alexander Sokolov Grant v. The Department of Arts Heritage andthe Gaeltacht [Et/156802-es-15] the Adjudicator/Equality officer considered the burden of proof and confirmed that it is for the Complainant to first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

In the case between Paul McGregor and SR Clo Ltd t/a Synchro (ADJ-00032564) the adjudication officer considered the issue of the burden of proof. The officer considered the case and stated:

“The onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.”

The Health Act, 1947 was amended to include a mandatory requirement to wear a face covering in shops pursuant to S.1 296/2020 -Health Act 1947 (Section 31A – Temporary Restrictions (COVID-19 -19) (Face Coverings in Certain Premises and Businesses) Regulations 2020. (“the Regulations”)

The Health (Amendment) Bill 2020, which amended the Health Act 1947, was signed into law by the President on October 25th, 2020. Under this legislation if a person was “Not wearing a face covering in certain retail outlets” they were fined €80 and if the person was prosecuted in court for an offence, the maximum fines or prison sentence decided by the judge, under the new system of tiered penalties, depended on whether it is for a first, second or third or subsequent offence.

In the recent decision of Bernard Carberry and T. O` Huiginn & A Comlucht Teoranta T. O` Higgins & Co. Ltd (ADJ-00032055) the adjudication officer found as follows: “theRespondent is certainly not required to justify public health guidelines per se, specifically therequirement to wear masks, he has as much say or control over such guidelines as theComplainant, which I suggest is very little given these instruments of public health policy weredecided by Government Advisers and Ministers, as is well known.” This is very much theposition in this case as without medical proof from the complainant’s doctor there was verylittle the respondent could do in order to accommodate her. It was not up to the Respondent tojustify the public health guidelines at the time.

CONCLUSION

It is incumbent upon the Complainant to establish a prima facia case of discrimination against her pursuant to the provisions of the Employment Equality Act 1998 and in doing so to establish which ground or grounds within Section 6 of said Act the Complainant asserts she has been discriminated against. It is not understood how the Complainant has been discriminated against. The Complainant has asserted that she could not wear a facemask for personal reasons and the Respondent did everything possible to accommodate the Complainant by offering her an alternative position which did not require her to wear a facemask which the Complainant refused. The Respondent could not have the Complainant returning to her job working with food without a facemask due to the global pandemic regulations and there was nothing further that the Respondent could do to maintain the Complainant’s employment. It is submitted that there is no evidence whatsoever of any case either prima facia or otherwise against the Respondent in respect of discrimination against the Complainant.”

Whether the Complainant has a “Disability”

The term Disability is defined in Section 2 of the Acts as follows: 

“disability” means—

(a)  the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b)  the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)  the malfunction, malformation or disfigurement of a part of a person's body,

(d)  a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)  a condition, 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;”

When the Complainant clarified (albeit only at the Adjudication Hearing) that she was claiming to have been discriminated on the disability ground an argument was raised (amongst other arguments discussed below) that the Claimant did not have a disability within the meaning of the Act and that she could not therefore maintain a claim for discrimination on the disability ground.

The Complainant said that she experienced “breathing difficulties” when she tried to wear a mask at work. The Respondent asserted that this was the first time that the Complainant had ever mentioned “breathing difficulties” and that the only information that was ever given to the Respondent prior to the Adjudication Hearing was that the Complainant suffered mental distress when wearing a face covering. The Complainant accepted that she had not used the phrase “breathing difficulties” in any of her communications or discussions with the Respondent up to an including when her employment was terminated or at any time thereafter.

It is certainly the case that the Complainant did not produce medical evidence of any form of illness or disability when requested by the Respondent so to do. In fact, she said that her doctor deemed her fit for work. In her sworn evidence the Complainant confirmed that she did not wish to reveal the background to the childhood trauma referred to in her email to her employer and she did not even wish to discuss what happened to her with her doctor. I do not accept as an absolute proposition that medical evidence must always be adduced by an employee as a pre-condition to being able to request that a disability be reasonably accommodated.  There will be cases where such evidence would clearly be unnecessary as the disability is self-evident. Where however the disability is not obvious or irrefutable, it is entirely appropriate for an employer to seek evidence of the disability to begin with and it is thereafter obligatory to make an enquiry (which may often - if not always - involve further medical investigation) as to how that disability might reasonably be accommodated. That is not to say however, that the absence or unavailability of medical certification totally relieves an employer of the obligation to make an enquiry into the issue of reasonable accommodation. It is possible that in the instant case, the Complainant’s issue with wearing a face-covering, which she said (admittedly only at the hearing) caused her breathing difficulties, has the potential to meet the criteria for a disability as that term is quite broadly defined in Section 6 (1) and thus I am not satisfied that the mere lack of medical certification defeats the Complainant’s case by itself. However, I am not obliged to make a specific finding on this issue given the basis of the decision which follows.

Discrimination Alleged

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

“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.”

In applying this provision in this case I adopt the approach adopted by the Labour Court in Dyflen Publications Limited  [ADE/08/7] as cited by the Respondent, where the Labour Court in turn adopted the following approach from U.K. decision in Madrassy v Nomura International plc [2007] IRLR 246:

“…the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent.”

The Respondent in its submission, maintained that the Complainant had not met the threshold of establishing facts from which discrimination may be inferred such as to shift the burden onto the Respondent to show otherwise. In any event the Respondent also offered evidence from the HR Manager and the then Regional Manager which demonstrated that significant efforts were made to engage with the Complainant and to accommodate her difficulty whether the same was a disability or not.

A central aspect of the Complainant’s argument, that she be allowed to work in food preparation wearing only a visor, was a lack of clarity in the Government Guidelines issued at the relevant time (mid pandemic) which permitted of certain exceptions to mandatory mask-wearing. However, in her evidence the Complainant did accept that, whatever about the Government Guidelines and their lack of clarity, the Respondent’s policy of insistence on mask-wearing where food was being prepared was reasonable in the circumstances of a pandemic. Despite this concession the Complainant nonetheless maintained that she was treated differently because she could not wear a mask.

Although she did not put it such terms, by alleging that she was discriminated against because she was unable to wear a mask, the Complainant was in effect seeking to draw a comparison between herself  on the one hand and other employees, who did not have a difficulty affecting their ability to wear a mask on the other. Insofar as the latter employees were permitted to keep working in food preparation when she was not, she alleged that this amounted to discrimination against her on the ground of her (alleged or putative) disability.

Neither party addressed this issue. The Complainant was not represented and did not raise the issue in the terms outlined above. The Respondent made the point, quite validly that the Complainant had not even identified the ground of disability which she was relying on until this issue was clarified by my questions to her at the hearing. Consequently, neither party can fairly be criticised for not addressing the issue in submissions but having heard all of the evidence and submissions and having reflected on the issues raised, I take the view that the law relating to reasonable accommodation is of assistance in the present case in an overall enquiry as to whether discrimination occurred.  This is so even where the issue as to whether the Complainant had a disability at all is unclear. This is because, in the present case, the Respondent actually dealt with the Complainant as if she had a disability even though this was never certified by the Complainant or accepted as a fact by the Respondent. 

Section 8 (1) (c) of the Acts prohibits discrimination against an employee in relation to conditions of employment. For the purposes of this claim, the case which the Complainant makes must be interpreted (although it was not framed this way by the Complainant who was unrepresented), as an alleged failure to provide reasonable accommodation of the Complainant’s disability by preventing her from working in food preparation without wearing a full face-covering.

Section 6(1) states that 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 “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) sets out the grounds in respect of which discrimination, as defined above is prohibited. Of relevance to the present case is ground (g) the “Disability Ground” which is set out as follows:

“(g) 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”)”

At the hearing, the Complainant accepted that the policy implemented by the Respondent requiring employees involved in food preparation to wear a full-face covering (and not just a visor) was not unreasonable in itself or in breach of government guidelines. However, she contended that that policy was applied to her in a manner which failed to accommodate her personal circumstances. She informed the Respondent that wearing a mask caused her “severe mental distress due to a personal childhood trauma”. She accepted in her evidence, both direct and in cross-examination, that she did not at that stage, at any stage during her employment or in written submissions prior to the adjudication hearing, make mention of “breathing difficulties” when wearing a face mask and that she mentioned this issue for the first time at the adjudication hearing. Moreover, the Complainant eventually clarified at the adjudication hearing that the present claim against the Respondent was for discrimination (in relation to her terms and conditions of employment together with dismissal) based on the disability ground and that the disability relied upon is a mental disability giving rise to breathing difficulties when wearing a face-mask. 

The Respondent advanced the position that it was reasonable to request medical certification from the Complainant so as to ascertain firstly whether she had a medical issue and secondly, if so, to assist the Respondent is formulating a strategy as to how best reasonably to accommodate this disability within the parameters set by the Employment Equality Acts. I find that this was a reasonable and appropriate request on the part of the Respondent in the circumstances presented.

The Complainant did contact her doctor who said that he was unable to give her a medical certification as to her unfitness when she was not sick and was not medically unfit to work. The Complainant explained this to the Respondent. In her evidence the Complainant said that she did not discuss the personal circumstances regarding the childhood trauma which caused her difficulties wearing a mask. It appears that the limited information given to her G.P. in a telephone consultation played a role in the outcome of the consultation such that the doctor was unwilling to certify the Complainant as unfit for work. It may well be that if the Complainant had provided a full and detailed history, that the doctor’s approach to the Complainant’s request may have been different such that he may have been able to give her a note or letter making reference to a medical disability of some sort.

In this particular case, the Respondent was faced with tackling the Covid 19 pandemic. It was attempting to offer food products to its customers in the safest possible way possible and in particular it was trying to avoid serving food potentially contaminated by the virus which it was feared and understood might emanate from employees preparing and serving this food. To mitigate the risk of employees inadvertently transferring the virus (which they could have been carrying without being symptomatic) onto food being prepared and served by them, the Respondent introduced a policy where all employees involved in food preparation and service had to wear full-face coverings. I find that this was a completely reasonable policy and one which the Respondent was perfectly entitled (if not obliged) to introduce of its own volition regardless of any lack of clarity in government guidelines.

I interpret this policy as having had the effect legally of altering the working requirements or duties associated with work in food preparation and service and consequently altering the contractual terms of employment such that the ability to wear a face covering was an absolute necessity to which, for public safety reasons, no exceptions could have been permitted - including where an employee could not wear a full face covering because of an actual or alleged disability. That finding being made, it is then necessary to consider whether the Respondent took such “appropriate measures” as it could to accommodate employees with a disability (or arguably a possible disability) following the temporary imposition of this no-exceptions-permitted working requirement.

The general provisions relating to reasonable accommodation of an employee’s disability are set out in Section 16 of the Acts which provides (where relevant) as follows:

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—…

…(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.

Subsection (3) introduces the concept of what is commonly known as the duty to provide “reasonable accommodation” by the provision of “appropriate measures”. Where relevant the subsection provides as follows:

(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.]

(4) 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;”

EMPHASIS ADDED

I find that in offering redeployment to the Complainant as it did, the Respondent was attempting to accommodate her alleged or putative disability by adopting “appropriate measures” which in this case constituted the “the distribution of tasks” (or in this case the re-distribution of tasks) as contemplated by Section 16 subsections (3) and (4) (b) in that she was offered other work, while the policy was in force, which did not require the wearing of a full-face covering. It is also the case that the measures adopted in the Complainant’s case, that is to say, her proposed redeployment to a part of the business not requiring the wearing of a full-face covering, were similar to those offered to all of the other employees who presented with difficulties in wearing full-face coverings. Unlike the Complainant however, all these employees (on the unchallenged evidence of the Respondent’s HR Manager) were successfully redeployed. 

The Respondent’s Head of HR, Ms. Marten, gave evidence (under affirmation) that several instances arose amongst the Respondent’s workforce of individuals who could not wear masks for medically certified reasons. She said that in every such case, those workers were successfully redeployed to other duties and terminations of employment were avoided. In the Complainant’s case, she too was offered redeployment and in her case her manager’s rate of remuneration was preserved. In such circumstances it is clear that the Complainant was not treated in any way differently to other employees who had issues with mask-wearing. Moreover, in the Complainant’s case no medical certification was presented and thus the Respondent was uncertain as to whether she had a disability as such but the Respondent nonetheless dealt with the Complainant’s issue as if she had a disability in that the same facilities were offered to her as to those who had presented medical certification.

The Complainant was offered a redeployment to another aspect of the Respondent’s business. It was eventually agreed that she would retain her remuneration package such that she would not suffer a loss of earnings during the redeployment. She was assured that she would be given such training as she needed to undertake the duties associated with the redeployment. Although she was not to be redeployed as a Manager - a rank or title which she held in the food preparation area before the pandemic - she was to be assigned to supervisory duties which was the closest equivalent position available. 

The Complainant said that she refused the offer of redeployment for the following reasons:

1. Because the government guidelines did not specifically exclude workers from working with food wearing visor’s only.

2. She did not want to work in retail which did not suit her career path. She loved the work she was doing in food preparation, and this was the career path she wished to follow.

3. She thought that her original position had already been filled which led her to believe that the redeployment into retail would be permanent and that the Respondent was “forcing her out” as she put it. She also said that she was worried that she would not get the same shift pattern as she had enjoyed while working in her original position.

4. Though not mentioned as a reason in evidence, it is clear from the Complainant’s written communications, including her submission, that she relied on the terms of her original contract, and she took the view that the Respondent had no legal right unilaterally to change her terms of employment.

These reasons were individually explored with the Complainant in the course of her evidence and cross-examination and were also addressed by the Respondent’s Head of HR. 

As to the issue regarding the Government Guidelines, the Complainant accepted that regardless of the Government guidelines and any lack of clarity in relation to same, that it was not unreasonable for the Respondent of its own volition to insist that all employees involved in food preparation wear full face coverings. I have already found that this was a reasonable policy in the light of the hazards presented by the COVID 19 Pandemic given the Respondent’s entirely understandable objective of taking all available measures to protect its customers buying food, from the potential risk of infection transmitted onto food by the workers involved in its preparation.

As to the reasons given at 2 and 3 above, I find from the evidence that the Complainant refused outright to accept the offer of redeployment and she did not engage with the Respondent or ask any questions as to whether it would be permanent or merely a temporary measure. Neither did she ask whether she had been permanently replaced. Her evidence was that she “thought” that she had been replaced and that she “thought” that the redeployment would be permanent. Similarly she did not enquire about the shift pattern which the Respondent intended to have her working. I accept the evidence given by the Respondent’s HR Manager and by the Regional Manger that the redeployment was never intended to be permanent and that the person who was filling the Complainant’s original role as Manager was doing so on a temporary basis. The Complainant never asked for clarification on these issues but instead acted on a subjective belief rather than actual information gained from a specific enquiry which the Complainant had an opportunity to make bit failed to make. I also note that the person who was temporarily filling the Complainant’s manager role was only appointed permanently to that role some time after the Complainant’s employment ended. If the Complainant had fears or concerns that the shifts she was to work in the redeployed position would not suit her, again she did not raise any of these concerns with the Respondent before refusing the redeployment. I also accept the general thrust of the evidence given by the Respondent’s HR and General Manager that the disciplinary process in which they engaged was directed towards retaining the Complainant who was a well-regarded employee rather than an effort to force her out.  

The Complainant may have subjectively felt that she was being pushed out of her job but there is no evidence that the Respondent had any desire to lose her services, and the Respondent’s conduct is entirely consistent with a desire to retain the Complainant in its employment. The Complainant may have had a subjective fear that the redeployment would end up being permanent, but the Respondent’s witnesses swore that there was never any such intention and that they would have been happy to explain this to the Complainant if she had sought reassurances about the temporary nature of the redeployment. Furthermore, the Respondent’s witnesses made the point that the Complainant’s job was filled on a temporary basis and the employee temporarily assigned to fill those duties was not appointed to the position of Manager until some five months after the Complainant’s employment had ended. As regards the Complainant’s concerns that working in retail would disrupt her career path, it is difficult to see how she could reasonably have reached this conclusion or reasonably have had this concern as the redeployment was clearly a measure which was taken on a temporary basis until after the pandemic had ended. Moreover the issue of reasonableness in relation to the refusal of the offer must be narrowly focused on the central issue of discrimination as distinct from a wider analysis which might be required in a case where an entitlement to redundancy were sought and refused but this does not arise in the present case where the Complainant has only made a discrimination claim.

Having heard and carefully weighed the evidence of the Complainant and the evidence given by the Respondent’s management witnesses, I find that the offer of redeployment made (whether it was legally required or not) constituted “appropriate measures” to accommodate the Complainant within the meaning of Section 16 subsections (3) and (4) and that the Complainant was not discriminated against. I further find that the Complainant’s decision to refuse the redeployment could not reasonably have arisen from or been attributable to discrimination.

Regarding the Complainant’s reliance on her original contract, it is true to say that the Respondent did impose a unilateral and non-negotiable alteration of her terms and conditions of employment. However, this was not done for discriminatory reasons but rather as an emergency measure due to circumstances (an unprecedented global pandemic) which were completely outside of the Respondents control. It must be borne in mind that the central issue in this case is narrow and sharply focused on the question of whether there was discrimination in terms and conditions of employment, access to employment and in relation to the termination of the Complainant’s employment. An issue such as the alteration of fundamental terms of the contract of employment and whether this was a fundamental breach is not a component part of such a claim in the absence of discrimination. The same is also true in relation to the Complainant’s argument that the internal procedures adopted by the Respondent were confusing (in that the line between disciplinary and mediation were blurred) and incomplete (insofar as an appeal was not offered) as such allegations are only relevant if discrimination existed. If discrimination is found, then all actions of the employer must be considered in the light of such a finding. Where, as in this case discrimination is found not to have taken place, arguments which touch on fundamental breach of contract and flaws in procedures are not directly relevant but would more properly fall to be considered in the context of other types of claims (such as for Unfair Dismissal or Redundancy) which the Complainant did not initiate.  

Although the Complainant was not offered an appeal and as such the procedures leading to dismissal were less than perfect, I am satisfied that the Complainant was steadfast in her refusal to accept the redeployment and that being so the Respondent was left with no alternative but to deem the employment terminated. An appeal was available under the Respondent’s internal procedures and insofar as it was not offered to the Complainant, the procedures were not exhausted before the Complainant’s employment was terminated and were therefore incomplete. However, I am satisfied that this procedural flaw cannot by itself establish discrimination where none has been found to exist otherwise. 

Finally, the Complainant, at the hearing, sought to rely on communications by text with her then line-manager which, she contended, established that the line-manager had sanctioned her return to work as Bakewell Manager wearing only a visor. These texts were written in Polish and were translated by the Complainant with the assistance of the interpreter at the hearing. I find that they only establish that the line manager was supportive of the Complainant generally and they cannot reasonably be construed as official approval by or on behalf of the Respondent of the Complainant returning to work wearing only a visor. Even if they did establish any form of sanction for the Complainant’s return without a full face-covering, it is clear that the entire matter had already been escalated to a higher level of management such that such the line-manager had no further authority to deal with any aspect of the Complainant’s employment.  

Summary of Findings

The Respondent introduced a policy mandating the wearing of face mask by all employees involved in food preparation and service. This measure was the Respondent’s best effort to ensure safety and was reasonable and prudent regardless of Government Guidelines as was the decision that no exceptions were to be permitted.

The Complainant refused to return to work wearing a face mask for reasons which she contended (albeit belatedly), amounted to a disability within the meaning of that term in Section 6 (1) on the Employment Equality Act.

Though not accepting that the Complainant had a disability and whilst at the same time not forcing her to wear a mask against her will, the Respondent sought to accommodate the Complainant whether she had a disability or not.

The Respondent did not seek to coerce the Complainant or force her out of her job in any way throughout its engagements with her and the Respondent sought at all times to retain her as an employee and tried to avoid the termination of her employment. Although the disciplinary process was somewhat unclear the Complainant was provided with a clear opportunity to return to work without a loss of pay and in a position as close to her original position as was possible.

The measures taken to accommodate the Complainant’s difficulties (whether the same were a disability or not) amounted to redeployment to other duties not requiring the wearing of a full-face mask and as such are within the definition of “appropriate measures” as provided for in Section 16 (3). The option was clearly and unequivocally put to the Complainant who declined the offer thereby bringing about the termination of her employment in circumstances which do not amount to discrimination on the disability ground.

The issues of fundamental breach of contract, lack of full fair procedures and whether the Complainant was offered suitable alternative employment do not form a central part of the claim made by the Complainant which was based solely on discrimination and insofar as such issues were raised in that context they do not establish discrimination where no discrimination has been found to have taken place.

The Complainant was not discriminated against by the Respondent.

The Complainant was not discriminated against by the Respondent.

Employment Equality Act, Sections 6, 8, 16 and 85A – Dyflen Publications Limited and Ivana Spasic (ADE/08/7) - Covid 19 Pandemic - Government Guidelines Regarding Face-coverings – Alteration of Terms of Employment to include requirement to wear full face mask when preparing and serving food to customers – Complainant unwilling to wear full face-mask – whether a disability within the meaning of Section 6– Reasonable Accommodation – Offer of Redeployment to duties not requiring full face covering – Whether Redeployment offered constitutes Appropriate Measures for purposes of Section 16 Employment Equality Act 1998 – Whether refusal to accept redeployment arose from discrimination or other causes -  relevance of contract issues, the fairness of internal fair procedures and whether suitable alternative employment offered and refused in context of discrimination claim – no discrimination established