Complainant

Respondent

Parties

Lindsey  Toner

Healthwise Pharmacy

Complainant

Respondent

Anonymised Parties

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Representatives

Lisa McBride Gallagher, Brennan & Ponsonby 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-00048756-001

22/02/2022

The complainant, Ms Lindsey Toner, worked in the respondent pharmacy and was unable for medical reasons to wear a mask.  The respondent refused to allow her work in the pharmacy without wearing a mask, which they say was in accordance with the prevailing advice/regulation covering pharmacies during and in the immediate aftermath of the Covid epidemic.  The complainant alleges, that in refusing to allow her work without wearing a mask at all times, the respondent failed in its duty to provide her with reasonable accommodation for her disability.

Evidence was given under oath/affirmation by the complainant, Ms Toner, and, on behalf of the respondent by Mr James Cassidy, Director of the respondent company.  All witnesses were subject to cross examination.  Submissions were received from both parties and considered by me.

The complainant, Ms Lindsey Toner, was an employee of Healthwise Pharmacy Group and worked in as a Pharmacy Technician.

In January 2021 the complainant tested positive for Covid-19 and was unable to work due to government guidelines. She was later hospitalised for 11-days. After being discharged from hospital, she spent several months on sick leave until August 2021 when she asked to return to work   She had been to the doctor several times and was told that she was suffering from Long Covid and was referred to the Long Covid Hub. She did wear a mask in public buildings, shops etc but could only sustain the mask for 5 minutes before having to leave the premises rapidly for fresh air. Every period after wearing a mask she suffered bouts of coughing and choking which usually ended with chest pains. It became apparent that the complainant was not capable of wearing a mask for a prolonged period. 

The complainant phoned her Manager, Mr Terry Dobbins, in August 2021, and made him aware that she was ready and able to return to work from the start of September 2021. She also informed him that she was physically unable and medically exempt from wearing a mask, but offered to wear a visor instead. The complainant also offered to wear a mask if she was required to speak with a customer face-to-face (for up to 5 minutes).  Her manager told the complainant that he would have to discuss this with the owners of the company and that he would get back to her. The manager informed her two weeks later that she could not return to employment until she could wear a face mask.

Neither her manager, nor anyone from Healthwise at that time (August 2021) or any time after ever asked to see a Face Mask Exemption Letter. At that point in time, the complainant expected that her manager would inform her that she could return to work and wear a protective visor. She expected him to advise her that she would be required to provide a medical exemption letter from her GP if she was unable to wear a mask.

The complainant messaged her manager again on the 13th of October 2021, to see if she could return to work as she was aware that the government guidelines had been easing. She was again told that she couldn’t return without a mask.

The Mask Exemption letter was provided to the complainant by her GP. There was always clear evidence available which supported her Mask Exemption based on a medical disability, and therefore she should have been allowed return to work wearing a visor.

There was ample room in the Dispensary where the complainant worked. There were other rooms in the pharmacy that she could have completed some tasks without being near others. The complainant informed her manager many times that she was happy to always wear a visor and could put on a mask for a brief few minutes if required to go down and speak to a customer on the shop floor.

It should be noted that that the complainant happily wore a mask every day at work and followed all SOP’s and guidelines until the day she left work due to being ill.  There was never any mention, thought or attempt to accommodate the complainant as an employee. All government covid restrictions were dropped In January 2022 and yet the respondent still failed to contact her or to consider allowing her to return to work. In September 2022, the complainant terminated her employment.

The complainant applied for several pharmacy technician jobs in the weeks and months after, however she was not called for a single interview. In October 2022, she began a course through the ETB.

The complainant was employed by the respondent from December 2011. As a pharmacy technician, at all times she was an exemplary employee. The respondent relies on various items, including the employee handbook, which details the policy on dealing with infectious conditions and states that all employees must follow any guidelines issued from the HSE and other relevant bodies on infection control while at work.

The complainant was diagnosed with COVID in January 2021 and subsequently hospitalised. She was deemed medically unfit to return to work for a number of months and suffered with long COVID which manifested itself by way of fatigue, shortness of breath, chest pains and asthma type symptoms. As a result, the complainant submitted that at all material times she was unable to wear a surgical face mask for any extended period of time.

The complainant contacted her manager around September 2021, inquiring as to whether she was permitted to return to work. She explained that she was unable to wear a face mask. However, she did propose she could wear a visor instead. She further proposed that she would wear a mask if  required to speak with a customer face to face for up to five minutes. The manager spoke with Mr. Cassidy, the owner, and having taken the advice of the Irish Pharmacy Union and Health Service Executive, the manager confirmed to the complaint that she would only be permitted to return if she could wear a surgical facemask in line with current public health guidelines. Further confirmation of this was given to the complainant on the 13th of October 2021.

The complainant remained absent from work and refused the offer made by the respondent to be examined by an occupational therapist or other medical professional to assist the complainant in respect of ongoing health issues, including the effects of wearing a mask.   In early March, the complainant engaged in a series of email correspondence with the owner, Mr. Cassidy, and it was agreed that the complainant should utilise the grievance procedure and that an external independent consultant would be engaged to deal with the complainant’s grievance.

At all material times, the grievance procedure was conducted in a fair and impartial manner. A full report of the outcome was communicated to the complainant and the grievance was not upheld.

The complaint was informed that she could appeal the findings of the investigation in writing to Mr. Cassidy on receipt of the report. By letter dated the 14th of June, the complainant informed Mr. Cassidy of her intention to appeal the findings notwithstanding that she was outside the time limit set for such an appeal. The respondent agreed to engage Graphite HR to conduct the appeal. The outcome of the appeal was that the initial decision was upheld.

The complainant subsequently resigned from her employment with the respondent.

The respondent submits that the pharmacy is a health care facility and as such is subject to specific advice and guidance published by the HSE in collaboration with the Health Protection surveillance centre and the Irish pharmacy union.  At all times the respondent strictly adhered to the advice of the public health authorities. The Pharmacy has a duty of care to all its staff, including the complainant and the members of the public who frequent the pharmacy as customers.

The Respondent submits that the guidance for pharmacy staff in respect of the wearing of masks was at all times more stringent than the general guidance on mask wearing for the public in other settings.

The guidance received from the HSPC through the IPU was as follows;

This guidance applies to pharmacy staff and in pharmacy settings.

Surgical face masks should be worn by healthcare workers when providing care to patients within two metres of a patient regardless of the COVID-19 status of the patient.

Surgical face masks should be worn by all healthcare workers for all encounters of 15 minutes or more and other healthcare workers in the workplace for a distance of two metres cannot be maintained.

This means that a health care worker should done a surgical mask if they anticipate being within two metres or more of other health care workers for a continuous period of 15 minutes or longer. It is not intended that healthcare workers should attempt to estimate in the morning the total duration of a sequence of very brief encounters domain occurred during the day.

The respondent relies on the copy of this advice received by email on the ninth of August 2022.

Furthermore, the respondents submits, while that the updated guidance in respect of control of management of COVID-19 and pharmacy settings was being issued as public health advice changed, at no point did the guidance recommend that pharmacy staff could cease to wear their masks.

In particular, the respondent relies on the HSE  Current recommendations for the use of PPE in the context of COVID 19 pandemic updated V 2.7 published 18/01/22.

The complainant submits that in around October 21, the public health advice had eased. The respondents submits that whilst that may have been true in the context of mask wearing general settings, the guidance has remained unchanged in respect of mask wearing among staff in healthcare settings such as pharmacies. This guidance is clear and without exception.

The respondent acknowledges the duties placed on it by the Employment Equality Act. In particular, the respondent has regard to Section 16 of the Act which relates to reasonable accommodation.

The respondent submits that the complainant was unable to comply with the guidance and in the circumstances where the complainant was working in a confined setting. The respondent could not reasonably accommodate the complainant with any other role within the pharmacy, such as any other alternative role would also require the complainant to wear a face mask due to interactions with other staff and customers. Furthermore, given the nature of the disability in the guidance and place, it was not possible for the respondent to put any physical alternative measures in place as to do so would create a disproportionate burden on the on the respondent. The respondent submits that the said pharmacy is a dispensary area in which the complainant worked on which measures four metres by two and a half metres. There's an island in the middle which measures 2.75 sqm  which reduces the space available it is not possible to maintain a social distance of two metres while working in this area. Furthermore, any other such roles such as retail based stocking or customer based roles would require interaction with the public and would require the use of a face mask.

The respondent relies on recent decisions of the Commission in a worker v a pharmacy of June 22.  ADJ 34440, ADJ 34466, ADJ 34468, ADJ 34469, and ADJ 34470 wherein the public health requirements for mask wearing in pharmacy settings was accepted by the Commission.

This is a complaint under the Employment Equality Act of discrimination relating to the alleged failure to provide reasonable accommodation on grounds of disability. The complainant was not permitted to attend work if she was not wearing a mask. The complainant outlined that she could not wear a mask referring to medical certification.

Section 16 Employment Equality Act

Section 16(1) of the Employment Equality Act addresses the extent of the obligation of an employer to provide reasonable accommodation to an employee.

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

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

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

Section 16(3) outlines the obligation to provide appropriate measures to an employee:

‘(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.’

Section 16(4) addresses what are appropriate measures.

‘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.’

Both the European Union and Ireland have ratified the UN Convention on the Rights of Persons with Disabilities, which includes the requirement ‘to take all reasonable steps to ensure that reasonable accommodation is provided.’ [Article 5]

Interpretation of ‘reasonable accommodation’

In Nano Nagle School v Daly [2019] IESC 63, the Supreme Court addressed the obligation to provide reasonable accommodation to an employee in the following terms:

‘Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But 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 Cunningham v Irish Prison Service [2020] IEHC 282, Barr J. concluded as follows

‘It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgements of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act.’

While addressing the partial exclusion in respect of emergency services, the Court held that there was no one-size-fits-all approach, and the nature of the obligation to provide reasonable accommodation depended on the circumstances. This could relate to the size of the organisation and the available roles within it.

On the 10th February 2022, the Court of Justice of the European Union handed down its judgment in the HR Rail case (C-485-20). The Court determined that, as a matter of EU law, reasonable accommodation required an employer to consider other roles than the role heretofore carried out by the employee.

The CJEU held that ‘reassignment to another job may constitute an appropriate measure’, albeit not to such an extent that it poses a ‘disproportionate burden’ on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill. As noted by the Advocate General in HR Rail, reasonable accommodation involves a fair balance between the needs of the person with a disability and those of the employer. Each case is determined according to its circumstances. Reasonable accommodation specifically requires the employer to consider other positions than the employee’s current position, albeit one the employee is capable of and in which there is a vacancy.

Pandemic-related legislation

Both parties referred to the emergency legislation introduced to address the Covid-19 pandemic, for example S.I. 296/2020 and the related public health advice. The respondent submits that the pharmacy is a health care facility and that same is subject to specific advice and guidance published by the HSE in collaboration with the Health Protection surveillance centre and the Irish pharmacy union. 

It was not disputed in this case that Covid-19 was an infectious disease which could be transmitted through the air. It was also not disputed that face coverings provide protection against the transmission of the disease.

The threat to public health was real and immediate. In O’Doherty and Waters v Minister for Health [2022] IESC 22, Hogan J. described the public health impact of the pandemic in Ireland in the following terms: ‘The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated.’

The questions to be addressed are whether the respondent was obliged under the duty of reasonable accommodation to permit the complainant to work without wearing a facemask for prolonged periods and/or to offer her work in a different area of the business where contact with other staff would be limited.  I note the evidence of the complainant that there were occasions when other staff did not comply with the requirements to wear facemasks. However, while this non-compliance should have been addressed by the respondent, I find it to be irrelevant to the question as to whether allowing the complainant to do so was a ‘reasonable accommodation’. The respondent submits that the pharmacy is a health care facility and that same is subject to specific advice and guidance published by the HSE in collaboration with the Health Protection Surveillance Centre and the Irish pharmacy Union and the pharmacy has a duty of care to all its staff, including the complainant and the members of the public who frequent the pharmacy as customers.  The respondent acted on the advice of these authorities and the complainant presented no evidence to the contrary.

It is clear from the evidence given that the respondent 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 in such circumstances, 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. Accordingly, I find that the complainant was not discriminated against.

The complainant was not discriminated against.

Reasonable accommodation, face masks