Complainant

Respondent

Parties

Claire  Moloney

Irish Prison Service

Representatives

Mr Martin Byrne BL instructed by Siobhan Daly -  George F. Daly & Co. Solicitors

Mr Brian Conroy BL instructed by Aideen O’Brien -  Chief State Solicitor’s Office

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-00049101-001

09/03/2022

The Complainant was employed as a Senior Psychologist with the Respondent at Cork Prison from 2007 to her resignation in 2021. She is claiming that she was subject to discriminatory treatment, both direct and indirect, on the grounds of disability when required to wear a mask in the prison during the Covid-19 pandemic.  She also asserts that her disability was not accommodated by the Respondent and, furthermore, that she was subject to harassment because of her disability.

The Respondent, the Irish Prison Service (IPS) denies all claims on the basis that the Complainant does not have a disability as defined under the Act and that Complainant cannot show that the wearing of a mask, which was a requirement to prevent the spread of the virus to a vulnerable prison population, would exacerbate her medical condition.

The Complainant’s counsel withdrew an original claim of victimisation at the commencement of proceedings.

Counsel’s Opening Statement Summary:

The Complainant was diagnosed with a medical condition, namely, Chronic Rhinosinusitis with anosmia and wheezing. The Complainant has a long history of nasal problems, including nasal polyps and allergies. At all material times the Complainant had been using prescription medications for her medical condition. The Complainant submits that the medical condition constitutes a disability as defined by and within the contemplation of Section 2 (1) of the Employment Equality Acts 1998-2015, (the Acts).

During the COVID-19 pandemic, the Respondent introduced a policy compelling all personnel to wear a face mask whilst at work. The use of a face mask was particularly problematic for the Complainant in light of her disability. At all material times, the Complainant was in possession of a letter from her GP which exempted her from having to wear a face mask due to her medical condition. The Complainant was also concerned that the Respondent’s policy could elevate the risk of her suffering adverse health effects by exacerbating her existing medical condition and risk the development of an even more serious condition in the future.

Following its initial introduction in 2020, the Respondent’s policy became increasingly more demanding as time progressed. By July 2021, she was required to wear a heavier cardboard  FFP2 face mask indoors for 7.5 hours each day. She was also required to wear a surgical mask when outdoors on the prison grounds. She was under threat of disciplinary action if she removed the mask at any point during the working day. As a result of the foregoing, the Complainant suffered significant difficulties in relation to her employment and her overall health.

The Complainant sought reasonable accommodation from the Respondent, including seeking various alternative arrangements, in order to enable her to continue to work whilst respecting the Respondent’s health and safety concerns and requirements. The Respondent made certain accommodations for the Complainant initially, including the provision of a separate office, however, all such accommodations were subsequently removed resulting in a work environment which became entirely unbearable for the Complainant. The Respondent insisted that the Complainant must wear a face mask in the workplace and held her under threat that she would be “removed from the payroll” if she did not comply. This underlying threat was the cause of immense stress for the Complainant. Moreover, the Complainant contends that she had been singled out at work because of her disability and treated in an egregious manner because she had voiced her complaints and sought to exercise her rights including the provision of reasonable accommodation from the Respondent, and that this constituted harassment.

Despite correspondence from her solicitor seeking reasonable accommodation, the Respondent’s refusal to make reasonable accommodation together with the manner in which it treated the Complainant at all material times became too much for the Complainant to bear. The circumstances at work had become so intolerable that she felt that she had no option but to leave. In that regard, by letter dated 26 October 2021, the Complainant wrote to the Respondent to tender her resignation.

The Complainant belonged also to a particular class of employee who found it impossible to wear a face mask and whilst it can be argued that the Respondent had a legitimate aim in preventing the spread of the virus, its strict application of the policy constituted indirect discrimination to that class of employee.

Summary of the Evidence of the Complainant:

The witness gave evidence of her condition and how it was first diagnosed by Dr Paul Carson in 2009. (Documentary evidence was exhibited on her behalf which consisted of the Diagnosis of Dr Carson in 2009, her G.P. report from Great Island General Practice and an opinion from a head and neck consultant, Mr Andrew Dias in 2021). She outlined how she had nasal polyps and an allergy to dust mites which was best suited to medication as distinct from a surgical procedure. She used a medical exemption certificate for travel by train to her place of work during the outbreak of the pandemic when masks were required for travel.

She described the stages of escalation for eventual compulsory   mask wearing and how the Respondent did not give due cognisance to her medical exemption letter but instead sent her for assessment to the Chief Medical Officer (CMO). She found the medical assessment to be unacceptable primarily because there was no actual physical examination – instead, it was done over the phone. She was also dissatisfied that the CMO had come to the conclusion that he did not think “… she has a medical condition that is an absolute contraindication for her not wearing a mask. “, without having contacted her G.P. or sought a G.P. report.

Counsel in examination brought the Complainant through some correspondence referred to by counsel for the Respondent in opening remarks as evidence that the Complainant was “an anti-mask extremist”. The Complainant refuted such a charge. Specifically in reference to an email of 7 October 2020 from the Complainant to her supervisor at Cork Prison, Dr Maura O’Sullivan, the references she made with regard to her reservations on measures to deal with the Covid-19 pandemic were legitimate scientific documents from respected medical specialists and academics, including a presentation from Prof. Carl Henegan of the Centre for evidence Based Medicine in Oxford to the Dail Special Committee on Covid-19.

The Witness gave details of how she was reasonably accommodated initially with the provision of a separate office but was eventually evicted when requirements for mask wearing escalated. (The Complainant referred to a comparator in the administration office whom she alleged told her that she was facilitated more favourably. (I did not allow this evidence on 2 grounds (1) The person referred was not in attendance and therefore what the Complainant alleged was hearsay and (2) The Respondent was prejudiced in that the existence of a purported comparator and the identity of the person was only disclosed at the hearing).

The witness described how the mandatory requirement to wear a hard carboard surgical mask (FFP2) made her position unbearable and untenable as she could not properly function because of her medical condition. She was between a rock and a hard place. In answer to a question from her counsel as to how she felt about wearing such a mask, the Complainant relied that it was so stressful because she could have been brought up on a disciplinary charge at any time if she refused. She sought reasonable solutions through her solicitor, including working from home, but the Respondent did not meaningfully reply to suggestions.  She went on a period of sick leave because of the stress and felt that she had no other option but to resign by letter on 26 October 2021.

Regarding harassment, she detailed the refusal of the Respondent to reasonably deal with her medical exemption from her G.P. and the threat of being on a disciplinary charge for failure to wear a mask. She referred to an incident whereby the Governor, or Assistant Governor, (she was not sure of identity) had come to the door of her office and reprimanded her for not wearing a mask. She referred to the eviction from her office as an element also of her harassment complaint.

Summary of Cross-Examination by the Respondent’s Counsel:

It was put to the Complainant that of the three medical reports she submitted none referred to her inability to wear a mask but instead, and specifically her G.P.’s report, mentioned her own (Complainant’s) perception and health anxiety. The Complainant did not accept this and instead referred to the G.P. report where she contended it significantly implied that her condition precluded her from wearing a mask. She accepted that Mr Dias’s report in 2021 was sought after legal advice.

She accepted that though the consultation with the CMO was by telephone, that it was a long consultation lasting one hour and twenty minutes. She also accepted that she made a complaint about the CMO to the Irish Medical Council on the basis that her report from her G.P. -doctor to doctor- should have been kept confidential.

It was put to the Complainant that she never had a medical exemption per se post the CMO examination, but the Complainant referred to her G.P. letter which she asserted fulfilled what she believed was the necessary exemption under HSE guidelines.

In reference to an email the Complainant sent to her management on 12 April 2021 indicating her views on Covid-19 vaccination measures, exhibited by the Complainant,  she said her reference to “apartheid legislation” was the literal translation from the Afrikaner word ‘apartheid’ which meant ‘apart’, and she did not intend to convey the negative connotations usually associated with the term ‘apartheid’.

Summary of the Legal Arguments of the Complainant:

Direct Discrimination:

The Complainant refers to Discrimination as defined in Section 6 of the Acts and specifically refers to the relevant provision on disability where it states:-

(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”),”

The Complainant submits that her medical condition constitutes a disability within the meaning and contemplation of the foregoing section 6.

Reasonable Accommodation

The Complainant submits that at all material times, the Respondent had a duty to provide reasonable accommodation for the Complainant in light of her disability.

The Complainant refers to Section 16 (3) of the Acts where it provides as follows:

(3) (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;”

The Complainant cites  A Worker v An Employer [2005] ELR 159, when considering s.16(1)(b) of the Acts where the Labour Court stated:

“… the subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.

The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Limited v McCaull [2001] IRLR 60).” 

The Complainant cites  Humphries v Westwood Fitness Club [2004] ELR 296 as a further authority on the test for reasonable accommodation.

Requirement for a Proper Assessment:

The Complainant argues that the Respondent also had an obligation to conduct a proper assessment of the Complainant’s needs. Despite being on express notice of same, the Complainant submits that the Respondent failed, refused, or neglected to fulfil its duty in that regard.

The Complainant submits that Section 16 of the Acts imposes an obligation on the employer to conduct a proper assessment of the disabled employee’s needs. In A Worker (Mr O) v An Employer (No. 1) [2005] ELR 113 referred to the case of Mid-Staffordshire General Hospitals in NHS Trust v Cambridge [2003] IRLR 566 where the EAT for England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by s.6(1) of the UK Disability Discrimination Act

1995 (which corresponds to s.16 of the Acts) included an obligation to carry out a proper assessment of the disabled employee’s needs. The headnote of the case report contains the following statement of the law:

“A proper assessment of what is required to eliminate a disabled person’s disadvantage is a necessary part of the duty imposed by Section 6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on Section 6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by Section 6(1), because it is a necessary pre-condition to the fulfilment of that duty and therefore part of it.”

The Complainant further sites  Meenan in Employment Law (2nd Ed. Round Hall 2023) at paragraph 12- 161: where she states:

“The onus is on the complainant to support an application for reasonable accommodation, with medical or other appropriate evidence outlining the reason for the accommodation and the accommodation required to enable the complainant to be fully competent and capable of undertaking the duties of the position.” 9

The Complainant contends in this instant case , that she  discharged the onus to support her application for reasonable accommodation by furnishing appropriate evidence to the Respondent in that regard.

 The employer’s obligation to make a proper assessment following receipt of a request for reasonable accommodation was considered by the Labour Court in A Government Department v A Worker (ADE0516). In that case the Court referred to the duty of the employer in that regard as follows:

“The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of the disabled employee …

This necessarily involves discussing the matter with the employee or their medical advisors.”

 The Complainant submits that the Respondent failed to fulfil its duty to make a proper assessment and failed to make reasonable accommodation for the Complainant within the meaning and contemplation of the provisions of the Acts.

On the nature of the disability, the Complainant refers to a UK case of Mrs S. Board v EDF Energy Ltd 1403284.18 where the Employment Tribunal found that the condition of Chronic Rhinosinusitis was recognised as a disability.

The Complainant refers to Nail Zone Limited v a Worker EDA 1023 where the Labour Court identified that the test for harassment was subjective as distinct from objective.

Prima Facie Case

The Complainant refers to Section 85A of the Acts where it provides that the complainant must set out a prima facie case of discrimination. When facts are established from which discrimination may be inferred, it is for the Respondent to prove to the contrary. The Complainant refers to the Labour Court decision in in Southern Health Board v Mitchell, DEE011, [2001] ELR 201 for guidance on interpretation of that provision where the Court stated:

ii. The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

The Complainant submits that once those primary facts are established to the satisfaction of the Adjudicating Officer, and they are regarded as being of sufficient significance to raise a presumption of discrimination, then the onus shifts to the respondent to prove that there has been no unlawful discrimination

The Complainant contends, in light of the facts and evidence presented on this instant case, that the Complainant has established a prima facie case which raises the presumption of unlawful discrimination on the part of the Respondent. The Complainant submits that the onus has shifted to the Respondent to prove otherwise.

Conclusion

 The Complainant contends that her employer failed to conduct a proper assessment and failed to make reasonable accommodation for her disability contrary to the provisions of the Acts. As a result, she was forced to resign from her role as Senior Psychologist. The Complainant submits that in all the circumstances, the Respondent’s acts and omissions constituted a breach of its duties under the Acts.

Moreover, the Complainant contends that the Respondent’s acts and omissions amounted to unlawful discrimination on the disability ground, as the Respondent failed to take the necessary steps to avoid placing the Complainant at a disadvantage in comparison to non-disabled employees.

 In light of the foregoing submissions and evidence provided, the Complainant submits  that she  has made a valid claim of discrimination on the disability ground.        

Summary of Counsel’s Opening Statement:

By reason of the enormous risk to public health – and, in particular, to the health of the prison population - represented by the Covid-19 pandemic, beginning in October 2020 all staff in Cork Prison were directed to wear surgical face masks in areas of Cork Prison where social distancing was not capable of being maintained.

 From the outset, the Complainant maintained that she should not be required to wear a face mask. She claimed that she was unable to wear a face mask due to health difficulties which were originally unspecified, although latterly she has described the health condition in question Chronic Rhinosinusitis. However, the Respondent’s Chief Medical Officer (CMO)  examined the Complainant, with the benefit of a report from her GP, and reached the conclusion in November 2020 that her condition did not preclude her from wearing a mask on health grounds. Notwithstanding the CMO’s conclusions, the Complainant continued to refuse to wear a mask in the course of her duties, other than when entering and leaving the prison. Beginning in October 2020, she used a sole-occupancy office that happened to be available at that time to engage in video meetings with other staff and one-to-one consultations with prisoners. She did not physically meet with any prisoners on a face-to-face basis during this period, as it was unsafe for her to do so where she was refusing to wear a mask. However, the Complainant objected when advised in May 2021 that the office was needed for use by other staff, and she ultimately took sick leave for a period of four months beginning in June 2021 prior to her resignation.  The Complainant claims that she was discriminated against by the IPS on the disability ground, in that her refusal to wear a face mask should have been accommodated.

The Respondent submits that the Complainant has not adduced sufficient evidence to establish a prima facie case (1) that her medical condition constituted a disability, and (2) that, if her medical condition did constitute a disability, it was a disability which precluded her from wearing a face mask in response to the threat posed by the spread of Covid-19.  Accordingly, the Respondent contends, there is insufficient evidence to shift the burden on to the Respondent to prove that it sought to provide reasonable accommodation.

The Respondent submits that, without prejudice to the above, there was no reasonable accommodation available which could have permitted the Complainant to perform the core components of her role without wearing a face mask. The Respondent argues that it is  entitled to rely on section 37(3) of the Acts  which requires personnel in the prison service to be fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the prison service may be services.

Summary of the Evidence of Dr Thomas Donnelly;

The witness described himself as an occupational health physician who is presently employed as the Chief Medical Officer (CMO) with the Irish Prison Service (IPS). He said that the examination of an employee referred to him involved examining the comprehensive pre-employment health section submitted by an employee to identify any underlying conditions, the health record with the IPS, the  G.P.’s report where available and the consultation with the employee. He understood that the Complainant in this case had Chronic Rhinosinusitis for a considerable period of time and was on medication. He said that wearing a mask over a period of eight hours a day was obviously an uncomfortable experience for anyone, but he quoted medical studies on the FFP2 mask which showed that the oxygen levels do not go down during that period. He said that in some cases, where people had severe breathing difficulties and were relying on external oxygen bottles, for example, then mask wearing would not be appropriate.

 In referring to his consultation with the Complainant, he noted that the Complainant told him that she gets a feeling of restricted breathing when she wears a mask and was afraid that it will make her medical condition worse. He noted in his report, which was exhibited, that he did not think that this would be the case. He stood over his conclusion namely that he did not think that the Complainant had a medical condition that was an absolute contraindication for her not wearing a mask.

On the G.P.’s report he noted that the Complainant had feelings of claustrophobia when wearing a mask but he did not consider this a diagnosis of claustrophobia per se, plainly because the Complainant normally worked in an open shared office and this condition is a fear of closed spaces, but that the reference to the condition  in the G.P.’s report was the Complainant’s  perception of the  symptoms she might have when wearing a mask.  

Cross-examination.

The Witness accepted that there was no physical examination of the Complainant but attributed this to the restrictions during the Covid-19 pandemic. He stated that if a physical examination was required then the Complainant would have to travel by public transport from Cork across the country, thus exposing her to high risk.

Summary of evidence of Professor Mary Horgan, Consultant in Infectious Diseases Cork University Hospital:

The witness outlined how she had 30 years of experience in her medical speciality. She trained in a number of Universities in the States and practiced at various locations in that country. On returning to Ireland, she set up the second centre for Infectious Diseases in Ireland at Cork University Hospital.

She described the impact of Covid-19 on the general population, but particularly so on those residing in nursing homes and prisons where vulnerable people interacted in close proximity to each other. She described why the wearing of masks was an imperative, as well as the application of other measures, but stated that the use of visors was comparatively ineffective. 

Summary of the evidence of Mr. Emmet Conroy, National Infection Control Officer Irish Prison Service (IPS):    

The witness gave a detailed account of the measures taken by the IPS during the pandemic and how the effects of the pandemic on the prison population were minimal during the crisis. He described how mask wearing and other stringent measures were adopted so as to achieve what was recognised national and globally as an optimal model in infection control.

Summary of the Evidence of Dr Sarah Hume, acting Head of Psychology IPS:

The witness outlined the various adaptive measures taken by the psychology staff of the IPS when combatting the virus. She stated that when first contacted by the Complainant for medical exemption on mask wearing, she was not made aware of the nature of the Complainant’s condition. She was not aware of any face-to-face contact between the prisoners and the Complainant during the material time. It was not her role to intervene during the period of contention on medical reports between the Respondent and the Complainant as these were matters for the HR Department only. Her role was supervision of the operational side of the psychology services only.

Summary of the Evidence of Dr Maura O’Sullivan, Senior Psychologist Cork Prison:

The witness gave brief evidence that she was not aware of the Complainant engaging with prisoners on a face-to-face basis during the pandemic.

Summary of Mr Peter O’Brien retired Governor and Assistant Governor, Cork Prison:

The witness described how he occupied the role of Assistant Governor in November 2020 when a room was allocated to the Psychology Service at the prison. He stated this was for the use of the Service and was not specifically allocated to the Complainant. He did not recall any incident whereby he had reprimanded the Complainant for not wearing a mask. He stated that his role was to protect the welfare of prisoners and wardens. He had no supervisory function over Psychology staff.  

Summary of the Legal Arguments of the Respondent:

In relation to the burden of proof, section 85A(1) of the Employment Equality Act 1998, as amended (the 1998 Act) provides: “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 relation to the burden of proof, in Graham Anthony & Company Limited v Mary Margetts EDA 038, the Labour Court stated: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

 In Valpeters v Melbury Developments Ltd [2010] 21 ELR 64, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

 In Posladek v Applegreen Petrogas Ltd ADJ-00038045, the WRC Adjudicator took the following approach to section 85A:

 “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 submits that - in order for the burden of proof to shift to the Respondent to establish reasonable accommodation - the Complainant must first establish prima facie: (1) that her medical condition constituted a disability; (2) that, if her medical condition did constitute a disability, it was a disability which precluded her from wearing a face mask in response to the threat posed by the spread of Covid-19; and (3) that an act or acts of discrimination occurred.

The Respondent submits that the Complainant’s medical condition does not preclude her from wearing a mask and that the Complainant has not adduced sufficient evidence to establish that her medical condition constitutes a disability as defined by section 2(1) of the  Acts.

The Complainant has not identified which ground of disability in section 2(1) she relies upon. In Janowicz v Ridge Trading Ltd, t/a/Regan's Supervalu Firhouse ADJ- 00032292, it was found that a medical certificate stating the complainant suffers from asthma and could not tolerate wearing a mask was not sufficient evidence to establish a disability under the Equal Status Act:

“The complainant in this case did not have any medical evidence that he was exempted, and he did not provide any details other than a piece of note paper which said that he “is/was suffering from Asthma” and that “patient does not tolerate mask”. The complainant submitted that this was sufficient to allow him to travel by air it does not meet the requirements of the Equal Status legislation. While the complainant in his evidence at the hearing confirmed that the wearing of a mask was difficult for him due to his asthma there is no basis to doubt his belief in this regard. However, I am not satisfied that his statement does not meet any of the five definitions set out in the Act or if such a difficulty with the wearing of a mask constitutes a medical condition. Section 2 of the Act places the responsibility for proving that he has a disability.”

 Graham Burke v Total ICT Services Limited ADJ-00034159 also related to the requirement for clear medical evidence proving a requirement for exemption from mask wearing. The complainant in that case refused to wear a mask to work at a customer premises of a pharmaceutical company and the company doctor reported that there was “no medical contra-indication to the wearing of a face mask”. The Adjudicator stated it did “not in any way wish to define his situation as meeting the medical definition of a disability” and decided the matter on the basis that the complainant had not established a prima facie case of discrimination, such that it was unnecessary to address the issue of whether the Respondent provided reasonable accommodation.

The Respondent contends that the Complainant has not adduced sufficient evidence to establish a disability, either considering her medical evidence on its own merits, or in particular when considering it in light of the IPS CMO report.  The Respondent further submits that the Complainant has not adduced sufficient evidence to establish that there was discrimination on the part of the Respondent. It is submitted that similar circumstances arise in this case, in that the inability to continue providing the Complainant with her own office does not constitute discrimination, and certainly does not meet the threshold required by section 85A.

 In Posladek v Applegreen Petrogas ADJ-00038045, the Complainant alleged discrimination on the ground of disability on the basis of mental disability giving rise to breathing difficulties when wearing a facemask. The Adjudicator did not find that these difficulties amounted to disability, and instead decided the matter on the basis that the Respondent sought to accommodate the Complainant whether she had a disability or not.  The Respondent argues determination in that case contains an important observation regarding the impact of the pandemic and the requirement to wear masks: “In this particular case, the Respondent was faced with tackling the Covid 19 pandemic.... 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.”

The Respondent submits that the obligation to provide reasonable accommodation pursuant to section 16 of the Employment Equality Act 1998 is not triggered in this case, as no disability which precluded the Complainant from wearing a mask arose.  Without prejudice to the foregoing, the Respondent submits that no reasonable accommodation was available which would have permitted the Complainant to perform the essential components of her job without wearing a face mask in this case. In that regard, it is an essential component of a prison psychologist’s job that she be available to meet face to face with prisoners. Wearing a visor or the use of a screen would not have provided sufficient protection against the spread of Covid-19 for the Complainant to be in a position to carry out the core components of her role. While the Complainant worked by way of video conference from a vacant room for a period in late 2020 / early 2021, this did not present a satisfactory solution in the longer term, and in any event the room was ultimately required for other purposes.

 In Nano Nagle School v Daly [2019] IESC 63, the Supreme Court (MacMenamin J) stated, in relation to the interpretation of section 16, as follows at para 89: “This does not, of course, mean that the duty of accommodation is infinite, or at large... The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee.”

 In Nowak v Moriarty’s Food Markets Ltd ADJ-00032391, the adjudicator found that reasonable accommodation does not encompass an obligation on the employer to permit an employee to work without a face mask. The adjudicator referred to the “expansive interpretation” of the principle of reasonable accommodation set out in Nano Nagle, Cunningham v Irish Prison Service, and the decision of the CJEU in HR Rail, 10 February 2022 (C-485/20), and applied in the context of alleged discrimination arising from refusal to wear a mask at work: “… the respondent had to balance the needs of its staff and customers, in particular to do everything possible to foster public health. As set out in the impressive evidence of the HR Manager, the respondent fairly and comprehensively considered other roles for the complainant, but none were available. At this time, not wearing a face covering indoors increased the public health risk and therefore reasonable accommodation does not encompass an obligation on the employer to permit an employee work without a face covering. Being able to attend work in these circumstances without a face covering is not an ‘appropriate measure’ within the ambit of section 16 of the Employment Equality Act. There was, therefore, no contravention in the obligation on the respondent to provide reasonable accommodation.”

The Respondent submits that in considering the proportionality of the burden, it is highly relevant that the Respondent is the Irish Prison Service and is accordingly the entity responsible for managing the risk of infection to prisoners as a vulnerable population in close confinement, which had to take reasonable measures beyond what was required in the general community due to the vulnerability of the prison population.  In that regard, Section 37(3) of the Acts underscores that the prison service is entitled to insist that all of its employees are fully competent and available, and fully capable of undertaking, the range of functions they may be called upon to confirm. In the case of a psychologist, this must include face to face meetings with prisoners. Section 37(3) states: “It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

 In Meenan on Employment Law, 2nd edition, 2023, the authors make the following observation in relation to section 37(3), at para 12-159:

“The Oireachtas recognised the particular function of An Garda Síochána, the Prison Service and other emergency services by providing that it is an occupational requirement for employment in the Prison Service that persons employed therein are fully competent and available to undertake and fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the Prison Service may be preserved.”

The Respondent contends that permitting the Complainant to be present on a prison premises without a mask in the proximity of other staff and prisoners would be unduly burdensome to the operational capacity of the IPS, particularly given the risk this would pose to the vulnerable prison population. It is further submitted that reserving an office for the Complainant’s exclusive use, in circumstances where the said office was required for another use, would also be unduly burdensome to the operational capacity of the IPS.

 The Respondent submits that when requesting an exemption from wearing a mask, the Complainant expressed views which were critical of the Covid 19 restrictions generally. In Bernard Carberry v T. O` Huiginn & A Comlucht Teoranta T. O` Higgins & Co. Ltd ADJ00032055, the adjudicator pointed out that the Respondent is not required to justify public health guidelines, as follows:

 “The references to various statutory instruments as set out by the Complainant suggest that he was very well versed in these matters, almost certainly more than most members of the public. Indeed, his reference to and submission on a medical review and submitting a requirement for peer reviews suggest that the public health guidelines regarding the wearing of a face covering were a matter of keen interest to him. Be that as it may, the Respondent is certainly not required to justify public health guidelines per se, specifically the requirement to wear masks, he has as much say or control over such guidelines as the Complainant, which I suggest is very little given these instruments of public health policy were decided by Government Advisers and Ministers, as is well known.”

 In her evidence and submissions, the Respondent submits that the   Complainant has made sweeping complainants of harassment, without identifying any specific incident of harassment. The Complainant has further alleged that it was threatened that she would be “removed from the payroll” if she did not comply with the Respondent’s directives. The Respondent contends that this is untrue, and the Complainant knows it to be untrue. It was only ever intimated to the Complainant that she would be removed from payroll when she had reached the limits of her paid sick leave. This was not a threat, but simply an application of the Respondent’s policy in relation to paid sick leave. The Respondent argues that the Complainant was neither victimised nor harassed. She was treated with courtesy, dignity, and respect at all times by the Respondent’s staff. It was her own decision to resign from her employment in circumstances where she was not prepared to wear a face mask in order to mitigate the spread of Covid-19 among an especially vulnerable population.

Applicable Law:

Section 6, of the Acts, in its relevant Parts, describes discrimination on the grounds of disability:-

(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(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”)…”

Section 2 of the Acts defines disability 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;

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably on the grounds of disability. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(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.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant must first establish (1) that she had a disability as defined  within the Acts’ parameters and (2) show  primary facts upon which the insistence of the Respondent’s position of mask wearing created an inference of discrimination against her.    

The Complainant gave evidence that she was diagnosed with a medical condition, namely, Chronic Rhinosinusitis with anosmia and wheezing. The Complainant has a long history of nasal problems, including nasal polyps and allergies. She stated that the condition was first diagnosed by Dr Paul Carson in 2009 and confirmed by Head, Neck, ENT and Thyroid Surgeon, Mr Andrew Dias in August 2021. Both medical documents were exhibited as well as a medical report from her G.P. in November 2020. None of the aforementioned the practitioners gave testimony at the hearing.

The Respondent put it to the Complainant that her purported disability was a common ailment amongst the population citing Dr Fauci (director of the U.S National Institute of Allergy and Infectious Diseases from 1984 to 2022) that 10% of the population of the U.S. had the same condition. The Complainant did not assert that it was not an uncommon condition. The Complainant accepted in evidence that before the mandatory requirement to wear a face mask, the condition did not impair her in her everyday duties, and she never had occasion to take sick leave because of the condition.

The Complainant cited the UK  case of Ms. S. Board v EDF Energy Ltd.1403284/2018  in support of her argument that Chronic Rhinosinusitis was recognised by the  Employment Tribunal as a disability under the Equality Act 2010, in that jurisdiction. However, I am satisfied that the cited  case can be distinguished on two fundamental grounds: (1) It  was a combination of two conditions Chronic Rhinosinusitis  and Migraine  in that case  and (2) the Tribunal found “…that the   combination of migraine and sinusitis had an adverse effect on the Claimant’s ability to carry out normal day-day-day activities, on numerous occasions for a period of several years dating back at least to 2014 and on numerous occasions throughout the material time.” In contrast, the Complainant in this instant case gave clear  evidence that her condition did not impair her when carrying out her normal duties at work.

The Labour Court seemed to impose a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation in  Government Department v A Worker EDA094 when it stated: “ It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded.”

I am satisfied that the condition as described by the Complainant, absent of any aggravating factors, was not such that hindered her full and effective participation in her role for the Respondent on an equal basis with other workers and therefore could not be classed as an disability under section 2 of the Acts. However, the question has then to be addressed as to whether the mandatory requirement to wear a facemask aggravated her existing condition to that of a disability that needed to be protected under the Act.  

I noted that the Complainant’s G.P’s report to the CMO (exhibited)  stated that the Complainant “… feels genuinely anxious about wearing a mask and has also reported feeling quite claustrophobic when wearing one.” Significantly, the report did not refer to her condition of Chronic Rhinosinusitis as being the reason for not wearing a facemask but rather the anxious and uncomfortable perception of claustrophobia. The CMO gave evidence that, in his opinion, this was not a diagnosis of claustrophobia but rather a perceived symptom of mask wearing which was the common feeling of uncomfortableness, felt by a lot of people when required to wear a facemask over a long period during the Covid-19 pandemic. I noted also that the Complainant’s Consultant, Mr Dias, did not refer to the Complainant’s inability to wear a facemask. In contrast, the CMO gave cogent evidence that he did not think that the wearing of a facemask restricted the Complainant’s breathing nor that it would make her condition worse and concluded, referring to his report, that he did not think she has a medical condition that prevented her from wearing a facemask. I found that the weight of the CMO’s testimony left little room to doubt that the wearing of a facemask would not exacerbate the Complainant’s condition, and moreover, would not elevate the condition to a debilitating one that required protection under the Acts.  

Having heard all the evidence and submissions in this case, I conclude that the Complainant did not make out a prima facie case that she had a disability at the material time,  as defined within the parameters of the Acts, and I decide  that she was not discriminated against by the Respondent on the grounds of disability.

For the reasons outlined above, I decide that the Complainant did not establish a prima facie case that she had a disability as defined within the parameters of the Acts, therefore, I find that the Respondent did not discriminate against her.

Employment Equality Acts 1998-2020, Covid-19, Disability, Facemask Wearing,