Complainant

Respondent

Anonymised Parties

Product Builder

Medical Device Manufacturer

Representatives

Self-Represented

Mr. Kevin Feighery, Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042935-001

08/03/2021

The Complainant commenced employment with the Respondent on 3rd June 2008. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €532.50. The Complainant was in employment on the date of the referral of the complaint, however he resigned his employment shortly thereafter, on 22nd July 2021.

On 8th March 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent discriminated against him on the grounds of disability by insisting that he wear a face covering in the course of his employment. By response, the Respondent submitted that the Complainant had not provided medical evidence to demonstrate said inability to wear a face covering, and that he had not cooperated with the Respondent’s internal procedures in this regard.

An initial hearing in relation to this matter was convened for 10th March 2022. As the matter did not conclude on this date, the matter was re-listed for hearing. Following a series of adjournments, the matter was re-list for, and concluded, on 12th May 2023.

Both parties issued substantial submissions in advance of the hearing and expanded upon the same in the course of the same. The Complainant gave evidence in support of this complaint, while a HR Business Partner gave evidence in defense. All evidence was given under oath and was opened to cross examination by the opposing side. At the outset of the hearing, the Respondent raised a preliminary issue as to jurisdiction. In this regard, they submitted that in circumstances whereby the Complainant had not discharged initial burden of proof imposed by the Act, the complaint should fail. This application will be considered following a summary of the substantive matter.

In circumstances whereby the subject matter of the complaint will relate to the Complainant’s personal medical history, I have exercised my discretion to anonymise the complaint in its published form.  

The Complainant was engaged as a product builder with the Respondent. At the outset of his employment, the Complainant disclosed that he suffered from asthma on a routine medical questionnaire. Notwithstanding the same, this condition did not affect the Complainant’s employment in any material fashion.

In or around July 2020, following the national guidance in respect of limiting the spread of the Covid-19 pandemic, the Respondent introduced a rule whereby employees were required to wear face masks whilst in the premises. At this point, the Complainant received medical advice from the GP in respect of this issue. In this regard, his GP informed him that given his medical history, he would be unable to wear such face coverings and an alternative would have to be arranged. On informing the Respondent of the same, they allowed him to wear a visor whilst performing his duties. This proved to be an acceptable compromise and one the Complainant would have been satisfied to continue with for as long as deemed necessary.

In November 2020, the Respondent changed their position in this regard. At this point, they insisted that all employees, including the Complainant, wear a fabric mask whilst in the common areas and performing their duties. These masks caused significant issues for the Complainant’s asthma and caused him to suffer panic attacks. The Complainant raised a grievance in relation to the same, with the Respondent requesting that the Complainant attend a company doctor. While the Complainant attended the appointment as arranged, he refused access to his medical records to the company doctor. This position was taken as the Complainant believed that his own GP, who had access to all of his medical records and history, had previously made the position clear. In this regard, the Complainant submitted that he had the right to elect which doctor provided a report in relation to his health.

Following the same, the Respondent removed the Complainant from his duties on 4th December 2020. On 14th December 2020, the Respondent withheld payment from the Complainant.

By submission, the Complainant stated that he suffered from a disability within the definition of the Act. He submitted that the Respondent’s insistence on his wearing a face covering whilst performing his duties created a situation whereby he became medically unfit for work. He stated that his doctor provided a clear account of the same, one which the Respondent refused to accept. On foot of the same, the Respondent elected to unilaterally remove the Complainant from his duties, causing him to suffer a significant and ongoing loss of earnings. On this basis, the Complainant submitted that the Respondent failed to make a reasonable accommodation for his disability and as such, he submitted that this application should be deemed to be well-founded.  

By submission, the Respondent denied the allegations advanced by the Complainant and submitted that his complaint should fail.

On 27th July 2020, the Respondent introduced the requirement for employees to wear face coverings whilst in the communal areas of the Respondent premises. Such a policy was introduced in line with the national policy in relation to the same and represented the Respondent’s own efforts to prevent the spread of the virus amongst their staff. When requested to wear said face covering, the Complainant stated that he was unable to do so as he suffered from a pre-existing medical condition. On foot of the same, the Complainant was referred to an Occupational Health Physician. By subsequent report, the OHP stated that the Complainant was within the high-risk group in respect of the virus and stated that it was important that he wear a mask whilst in the proximity of others. Following an internal meeting in respect of this issue, the Complainant began to wear a visor whilst performing his duties.

In November 2020, the government published the Work Safety Protocol. At that time, the national advice regarding face coverings evolved. Prior to the same, it was believed that wearing a visor provided an effective barrier to the spread of the virus. Following this date, the relevant advice was that such visors did not provide an effective deterrent to the spread of the virus and face masks were recommended for all employment situations. On foot of the same, the Respondent mandated that all employees wear face coverings whilst performing their duties and in the common areas of the premises from 2nd November 2020. From this date, the Complainant refused to wear a face-mask in accordance with the Respondent’s policy and national guidelines. On 24th November 2020, the parties held a meeting in respect of the issue. At this point, the Complainant suggested that he worked in isolation or be made redundant on enhanced terms. By response, the Respondent suggested an accommodation whereby the Complaint would work in a socially distant station within the premises. They further suggested that whilst performing his duties the Complainant could wear a visor as previously arranged. Following the same, the Complainant would only be required to wear a face covering whilst in the common areas of the premises.

As the parties did not reach agreement in relation to this issue, a further meeting in respect of the same was arranged for 27th November 2020. At this juncture, the parties agreed to pause and gather relevant data prior to making any further decisions in respect of the matter. Whilst this process was underway it was agreed that the Complainant would remain off-site with pay. The Complainant was asked to collate all relevant information regarding position in respect to his purported inability to wear a face covering. In this regard, the parties agreed to re-convene on 4th December to discuss the matter further.

Following this meeting, an email was sent to the Complainant on 30th November, requesting his consent to the Occupational Health Physician to speak directly with the Complainant’s GP. Following three further requests of this nature, the Complainant failed to allow the Respondent have access to his personal medical records. On 9th December 2020, the Respondent informed the Complainant that as a consequence of his non-adherence to health and safety standards on site, he would be placed on unpaid leave thereafter.

By submission, the Respondent accepted that the Complainant suffered from a disability as defined within the Act. Notwithstanding the same, they did not accept that this Complainant demonstrated that this disability prevented him from wearing a face-covering for any period of time. They submitted that they referred the Complainant to their Occupational Health Physician in this regard, however the Complainant’s continued refusal to permit the Respondent’s physician access to his medical records has severely hampered their ability to assess the situation. In this regard, it is submitted that throughout the meetings and correspondence in this regard, the Complainant did not provide a medical report of any description stating that he was unable to wear a face-covering on the grounds of his disability. Notwithstanding the same, the Respondent submitted that they sought to accommodate the Complainant by allowing him to wear a visor whilst performing is duties and a face mask for the short time he would be in the common area of the premises. They submitted that their represented a reasonable solution to this issue, and one that was rejected out of hand by the Complainant.

Having regard to the totality of the foregoing points, the Respondent submitted that the Complainant’s application should fail.

Section 16(3)(b) of the Employment Equality Act provides that,

“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.”

Section 16(3)(b) provides that,

“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.”

Section 2 of the Employment Equality Acts define “disability” in the following terms

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”

Regarding the present complaint, it is accepted that the Complainant was diagnosed with asthma, a condition that would meet the above-mentioned definition. It is further accepted that the Respondent was aware of this condition from at or near the commencement of the Complainant’s employment. While this condition did not impact upon the Complainant’s employment for the majority of the same, the Complainant has submitted that the imposition of the mandatory wearing of face coverings caused him significant discomfort, with the potential to cause panic and asthma attacks. 

Having regard to the foregoing, the Complainant submitted that the Respondent failed to make a reasonable accommodation for his disability. As a consequence of this failure, he submits that he was denied access to employment in accordance with Section 16(3)(b)(iii) above. In the alternative, the Respondent submitted that they met and corresponded with the Complainant throughout the relevant period with a view to exploring reasonable accommodations. They submit that the Complainant failed, at all times, to demonstrate that the wearing of face coverings caused him any form of medical issue. They further submit that they did suggest a reasonable accommodation but that this was unreasonably refused by the Complainant.

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows:

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”.

Regarding the instant case, it is apparent that the Respondent met with the Complainant on several occasions and thereafter issued ongoing correspondence in relation to a potential reasonable accommodation. In this regard, the primary point of conflict concerned the Complainant’s assertion that the wearing of a face mask caused him significant medical difficulty. In this regard, the Respondent referred the Complainant to their own occupational health specialist. The subsequent report issued in this regard clearly stated that the Complainant was at high risk and should wear a face covering whilst performing his duties. Notwithstanding the same, the utility of this report was severely hampered by the Complainant’s continued refusal to allow the Respondent’s medical advisors to have access to his personal medical records. In this regard it is noted that the Complainant did not provide a medical report confirming this position in the course of his employment or at the hearing of the matter. Rather, the Complainant’s position is that his general practitioner informed him verbally, some time ago, that he was medically unfit to wear a face covering. The Complainant then relayed this information to his employer and their medical advisors as proof of his condition. During the consultation process, the Complainant also submitted general information regarding the difficulties those with asthma could experience in wearing face coverings.  Having considered the totality of the evidence presented, it is apparent that this falls well short of the proving any form of medical condition or establishing the requirement for a reasonable accommodation on foot of the same. The disability with which the Complainant was diagnosed Is one with a wide spectrum in the severity of symptoms. In this regard, whilst the Complainant has asserted that those with asthma might suffer adverse effects from mask wearing, he has not demonstrated that this is the case for himself in particular and has not demonstrated that these effects are such that the Respondent would be required to deviate from mandated mask wearing in his case.

In such circumstances, it is apparent that the Respondent did everything within their power to determine the true extent of the Complainant’s condition and thereafter explore what, if any, reasonable accommodations in this regard. The Complainant’s refusal to allow access to his medical records severely limited the extent of this investigation. Nonetheless, it is apparent that the Respondent did offer a reasonable accommodation to the Complainant. In this regard, the Respondent offered to allow the Complainant to work in a socially isolated area whilst wearing a visor. Thereafter, he would only be required to wear a face covering whilst walking through the common areas of the facility. Having reviewed the relevant evidence in this regard, it is apparent that the Complainant has not established any reasonable basis for the refusal of this offer.

Notwithstanding the foregoing, it is noted that the business of the Respondent is the manufacture of complex and sophisticated medical devices. In addition to the same, the Respondent is a large employer and maintains a consequent duty of care to each of those persons. The nature of the Respondent’s activities is that these employees must work alongside each other in enclosed spaces for lengthy periods of time.  In such circumstances, it is entirely reasonable that the Respondent was diligent in its insistence that its employees wear appropriate face-coverings whilst performing their duties. This is not to exempt the Respondent from their duties under Section 16 of the Act, however in such circumstances it is reasonable to assume that any deviation from the requirement to wear such face coverings is based on independent medical evidence and in consideration of the well-being of all other employees. Regarding the present case, it is apparent that the Complainant has not established any medical basis regarding his inability to wear a face covering. In such circumstances, the Respondent cannot have been expected make an exception in respect of their obligation to reduce the spread of the Covid-19 virus amongst their work force.

Having considered the totality of the forgoing points, I find that the Respondent is not in breach of their obligations under Section 16(3) of the Act.

I find that the Complainant was not discriminated against.

Reasonable Accommodation, Mask Wearing, Medical Report, Medical Records.