Complainant

Respondent

Parties

Matthew  Donovan

Health Service Executive

Complainant

Respondent

Anonymised Parties

Representatives

Mary Fay B.L. instructed by J. D Scanlon & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052066-001

02/08/2022

The complainant is claiming discrimination under the Equal Status Acts on the grounds of disability when he says he was not allowed to attend for a blood test because he was not wearing a face mask.

The complainant submits he had an appointment at the Boyne Primary Care Centre on 3 March 2022 for a blood test that had been ordered by his GP. He was in possession of a face covering exemption letter from his GP, arising from a diagnosis of severe anxiety made in 21 October 2020. His wife contacted the clinic before the appointment and was told that this would not be a problem and to bring a copy of the exemption letter.

He went to the centre for his appointment, gave his name to the security guard and told him he had an exemption from wearing a face mask. The security guard said he had not been told the complainant could come in without wearing a face mask and refused to allow him upstairs to go to the Phlebotomy Service for his appointment. The complainant was starting to get nervous that he would miss his appointment but the security guard stood in his way. The complainant asked for the manager and the security guard took the letter upstairs to show the Manager, who refused to come downstairs.

The complainant’s wife, who was with him throughout, rang the local Garda station and two members of An Garda Siochana came to the clinic. The manager then came down. He confirmed the complainant was being refused entry and that the complainant was being banned from the Clinic under the Health and Safety Act because he bumped into the security guard. The manager saw the exemption letter but said “I don’t care about that”. The gardai said the matter was out of their hands. This all took place in the Clinic’s reception area where everyone passing by saw and heard what took place. The complainant said he was feeling unwell and it was clear he had missed his appointment so he decided to leave.

The complainant rebooked his appointment for 19 July, he was not asked for the exemption letter and was seen without issue.

Notification: the respondent raised a preliminary issue that the complainant did not notify the respondent of his complaint within 2 months of the alleged incident complained of, as required by Section 21 of the Equal Status Acts. The incident took place on 3 March 2022 and the ES1 form submitted to the WRC is dated 4 June 2022. The respondent submits the complaint is out of time. The respondent notes the delay in submitting the ES1 was brought to the complainant’s attention by the WRC and he requested the complaint be admitted because of the “extraordinarily long response times” by the recipients of his correspondence to the HSE. The respondent submits there was no significant delay in responding to the complainant’s communications. Furthermore, the correspondence related to a data access request and did not relate to alleged discriminatory treatment. The respondent submits the complainant has given no reasonable cause for the time period for notification to be extended.

Disability: the respondent raised a second preliminary issue; that this claim is one of discrimination on the grounds of disability but the complainant has not provided any evidence to verify any alleged disability. They say it is not sufficient to say he was suffering from “severe anxiety” and they cited precedent cases where the distinction between stress and a disability is clearly drawn.

Substantive Claim: the respondent says the complainant had an appointment to attend at Boyne Primary Care Centre on 3 March 2022 for blood tests. On 3 March 2022 everyone within a healthcare setting was required to wear a mask or, where a predetermined medical issue arose, a face shield.

The respondent submits they have no record of any contact with the centre from the complainant or his wife before his appointment about the wearing of masks. On 3 March 2022 a security guard was present at the entrance to check all those attending had a legitimate reason for so doing and were following all HSE infection prevention protocols and guidelines. The complainant and his wife came into the centre and neither were wearing masks. They told the security guard the complainant had an appointment for a blood test. The security guard asked both of them to put on masks. They said they were exempt, were asked for a letter to this effect but none was produced. The security guard advised them that the HSE Manager was strictly enforcing mask wearing requirements, at which point the complainant replied “wait till you see this then” and went for the stairs requiring the security guard to intercept him on the stairs and hold out his hands to stop him continuing to proceed any further.

It was only after getting the complainant back down the stairs in the lobby that the Complainant’s “letter of exemption” was provided to the security guard. At this point the complainant’s wife called the Gardai. It took some time for them to arrive and the complainant and his wife chose to remain in the lobby. When they arrived the Manager spoke with the complainant and his wife in the presence of the Gardai.

The respondent submits the complainant was aware of the requirement to wear a face covering and of the necessity of bringing proof of any exemption from this requirement to his appointment. Despite this the complainant proceeded past the security guard in the lobby without a face covering to enter a clinical setting and before producing any evidence of exemption., despite being asked to do so. It is submitted that any person behaving in the same manner would also have been stopped by the security guard and refused entry; and this response is linked directly to the behaviour of the complainant and not to any alleged disability.

The respondent submits the complainant has failed to establish facts from which it can be presumed that there has been discrimination on the disability.

Notification: Section 21 (2) of the Equal Status Acts states:

Before seeking redress under this section the complainant -- (a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of -- (i) the nature of the allegation, (ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act, and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent." Subsection (3) allows that this period may be extended to four months if there is reasonable cause.

The incident of alleged discrimination took place on 3 March 2022 and the ES1 was dated 4 June 2022. The complainant says he requested CCTV footage of the incident from the respondent and this delayed him sending the ES1. I accept the complainant wanted this footage because he thought it would support his case. There were good reasons for the respondent not to supply the footage. In the circumstances. I accept the complainant’s efforts to get information to support his claim amount to “reasonable cause” for the delay in sending the notification. I allow the extension and do not find this claim to be out of time.

Disability: this complaint is made on the grounds of disability and the respondent submitted that the complainant had given no evidence of a disability. At the hearing the complainant said he had been diagnosed by his GP as suffering from “severe anxiety”. After the hearing the complainant submitted a medical report from his GP confirming a diagnosis of “severe anxiety” and “PTSD”. I accept this amounts to a disability within the meaning of the Equal Status Acts.

Substantive Claim: The complainant contends that the respondent refused him access to his appointment for a blood test because he was not wearing a face mask. He says he was exempt from wearing a face mask for medical reasons and the refusal to allow him access to the blood test amounts to discrimination on the grounds of disability under the Equal Status Acts.

The respondent says the clinic was a healthcare setting and was following all HSE infection prevention protocols and guidelines. When the security guard asked the complainant to put on a mask he did not say he was exempt and show his exemption letter. Instead, he decided to try and evade the security guard and make his way upstairs still not wearing a mask. The security guard got in his way. The complainant’s wife called the Gardai and the respondent effectively barred the complainant from the clinic because of his behaviour.

Section 4 (4) of the Equal Status Acts states: “Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”

The respondent did refuse the complainant entry to his blood test because he was not wearing a face covering. They did this because they were a healthcare setting and following HSE infection prevention protocols and guidelines.

I conclude the Clinic behaved reasonably by refusing service to the complainant. The complainant must have known everyone else was required to wear a mask and he was, in effect, asking for special treatment. I am not sure of the conversation the complainant’s wife said she had with the clinic in advance of the appointment but no special arrangements were agreed in advance that would allow the complainant entry without wearing a face covering. In the circumstances of the Covid-19 I believe there was an onus on the complainant to ask for a special arrangement to be made. If he had asked for this arrangement I believe the clinic would have made such an arrangement.

I find the respondent can avail of the defence for different treatment allowed under section 4 (4) and the complainant is unable to establish a prime facie case of discrimination under the Equal Status Acts.

For the reasons given above I find the respondent can avail of the defence for different treatment allowed under section 4 (4) and the complainant is unable to establish a prime facie case of discrimination under the Equal Status Acts.

Equal Status Act – section 4 (4) defence