Complainant

Respondent

Anonymised Parties

An Former Employee

A Medical Company

Representatives

Antoinette Fahy Ronan Daly Jermyn

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-00047852-001

28/12/2021

The background to the complaint was the Covid-19 pandemic and the Respondent’s policy in relation to wearing facemasks.

-          At the outset the Complainant made an application to have the adjudication hearing held in private due to the medical information she wished to disclose. The Respondent did not object. In the circumstances I decided that the adjudication hearing should proceed otherwise than in public.

-          I informed the parties in the course of the adjudication hearing that the focus of my decision making and jurisdiction was on whether or not the Respondent had discriminated against the Complainant contrary to the Employment Equality Act [1998-2022] and was not the provisions or implementation of SI 296/2020 - Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020.  

-          The Complainant commenced employment with the Respondent on 14/9/2020. Her last day of attendance in the workplace was 6/1/2021 which date she stated on her Complaint Form to the WRC of 28/12/2021, was her most recent date of discrimination. The Complainant resigned on 12/4/2022. The Respondent made a preliminary application that the complaint was out of time.  The Complainant stated that the delay was due to health issues, that she was on sick leave from 7 January 2021 and encountered difficult physical and mental health problems during 2021. The Complainant submitted various medical reports in support of her contention in this regard and stated that she could not engage with the WRC until after she saw a psychiatrist.

The Respondent objected to the Complainant’s reliance on medical evidence and maintained that whilst the Complainant was unfit for work the medical evidence had not established that she was prevented from lodging her complaint to the WRC within the six months prescribed by the Workplace Relations Act [2015-2021] nor had she established reasonable cause to warrant an extension of the time limit by a further six months. The Respondent cited various exchanges it had with the Complainant after January 2021 including in relation to her contracting Covid-19 whilst in Poland in March 2021 and an email from her indicating she would return to work on 20 May 2021.

I advised the parties that I would reserve my decision on the jurisdictional matter re time limit, pending concluding the evidence and submissions. 

The Complainant outlined her health issues since 2018. She stated that because of these conditions she was exempted from wearing a face mask. The Complainant provided extensive documentation in relation to her medical issues. The Complainant stated that when she commenced working for the Respondent there was no requirement to wear a face mask although some employees started wearing them on a voluntary basis. The Complainant stated that she informed two Safety Officers she was exempt without giving medical details. The Complainant stated that without prior notice a new rule was introduced from 4 January 2021 whereby all employees were required to wear a face mask although this was not stipulated in the Respondent’s policy until February 2021. The Complainant stated that from 4 January 2021 her “nightmare” began and in that regard she outlined her dealings with various employees of the Respondent including with HR and her Supervisor.

The Complainant stated that she informed her Supervisor and sent an email to HR on 4 January 2021 to the effect that she was exempt and that she did not wear a face mask on 4 or 5 January 2021. The Complainant stated that on 6 January 2021, her Supervisor informed her that she was exempt from wearing a mask. The Complainant stated that her work colleagues were not happy with this and that she considered she was being bullied by them which she found hurtful. The Complainant stated that approximately two hours later on 6 January 2021 she was informed that she needed to wear a mask and that she was shocked that HR had changed its position in relation to her exemption. The Complainant maintained that she would not wear a mask.

The Complainant outlined her meetings with the Respondent’s Production Manager and with the then Chief Executive Officer on 6 January 2021. She stated that she felt humiliated as she did not wish to disclose her health problems and found the meetings upsetting and that the first meeting lacked privacy. She stated that whilst she was asked to sit down and given a glass of water by the former CEO he made no provision for her to be exempt from wearing a face mask. The Complainant stated that the former CEO said to her that if she had no mask he had no work for her and that this “broke her completely”.

The Complainant stated that she furnished a letter from her GP dated 15/5/2020 which she asked to be sent to the company doctor. The Complainant stated that the Respondent stated that it did not accept this GP letter was evidence of an exemption.

The Complainant stated that after the meeting with the Chief Executive Officer she put a face mask on for a few hours as she felt pressured to do so but had problems breathing and experienced anxiety. Accordingly she contacted her GP after work on 6 January 2021 and was declared unfit for work from 7 January 2021. Subsequently the Respondent sent the Complainant for occupational health assessments which confirmed she was unfit to return to work.

The Complainant was cross examined on her evidence. In response to a question she stated that she travelled to Poland in or around March 2021 for medical reasons and that the paperwork was completed by her son. She stated that it was not possible for her to maintain a two metre distance from colleagues in the workplace. The Complainant also took issue with the Respondent’s Covid-19 procedures.

Witness for Complainant/A Former Employee:

A former employee of the Respondent who worked with the Complainant in 2020 and January 2021 gave evidence that the Complainant was a very good employee and got on well with her colleagues. The witness gave evidence in relation to employees being advised on 4/1/2021 of the requirement to wear face masks and that the Complainant informed the Respondent she was exempt. The Witness stated that for the most part - depending on the workstation - employees worked approximately two metres apart. The Witness stated that because the Complainant was not wearing a face mask there was a change of attitude towards her former colleagues. The Witness stated that on 6 January 2021 the Supervisor initially informed staff the Complainant was exempt from wearing a mask but later advised she was required to do so. The Witness stated that prior to January 2021 the Complainant was confident and cheerful but that after 4 January 2021 she showed signs of stress and anxiety.

The Witness was cross examined on her evidence. Under cross examination she accepted there was a “universal approach”, that every employee was required to wear a face mask, that she herself wore a mask and that she had not heard of any other exemptions apart from the Complainant. The Witness also stated that she had not seen any documentation related to the Complainant’s exemption.

It is the Complainant’s position that she was discriminated against because of her mental and physical health and inability to wear a face mask and that as a result she lost her job. The Complainant stated that the Respondent’s Covid procedures of January 2021 were discriminatory and that she was bullied and harassed in the workplace including in front of colleagues. She stated she was not provided with reasonable accommodation including the opportunity to wear a visor instead of a mask. The Complainant stated that she suffered anxiety and stress as a result of her treatment and was prescribed antidepressants. The Complainant cited various documents and procedures in support of her position including S.I. No. 296/2020. She also stated that she had not received the Respondent’s Christmas voucher for December 2020.

The Respondent outlined its background in the development and manufacture of medical devices and stated that it employed 224 staff. The Respondent stated that it was considered an essential service throughout the Covid-19 pandemic. The Respondent stated that its priority during this time was to keep its employees – and by association their families – safe from Covid-19 whilst providing a working environment that was as comfortable as possible in the circumstances.

The Respondent stated that it established a Covid Response Team (CRT) in March 2020 and introduced a Covid Response Procedure (CRP) in May 2020. The Respondent stated that the CRT followed all government advice and put in place a suite of measures including 2 metres distancing, staggered shift start and finish times, designated exit and entry points, hand and respiratory hygiene, use of virtual meetings, the Covid Self Declaration Form and the provision of masks for all employees. The Respondent stated that all employees including the Complainant were trained on the CRP.

The Respondent stated that initially employees maintained a 2 metres distance and therefore facemasks were not required. However, in December 2020 following concerns about escalating Covid numbers, the CRT decided to introduce mandatory mask wearing from 4 January 2021 when the site reopened after the Christmas vacation period. In this regard, the CRT called an extraordinary teams meeting with all managers on 29 December 2020 to inform them of the mandatory mask wearing policy. In addition the Respondent’s former CEO notified all employees of the mandatory mask wearing policy by email of 31 December 2020.

The Respondent stated that mandatory mask wearing was to be limited to situations where employees were circulating in the common areas and unable to maintain a 2-metre distance. The Respondent stated that the CRT also decided that where employees expressed a difficulty in wearing masks, they would be required to provide a medical letter/certificate of exemption and that arrangements would be put in place to accommodate them. The Respondent outlined that its CRP was updated to reflect the Respondent’s change of policy in relation to mask wearing.

Witness 1 for Respondent/Health & Safety Specialist:

Witness 1 give evidence that she was employed to support the Respondent’s Covid-19 policies and procedures and was continually involved in risk assessment. She outlined her activities in that regard. Witness 1 stated that she met all employees at the Respondent’s site entrance on 4 January 2021, that she informed them of the mandatory mask wearing policy and provided Supervisors/employees with a Covid Self Declaration Forms and face masks. She stated that she informed employees the policy was being applied to everyone except those who were medically exempt. She explained that it took time to change the policy to reflect the new situation re mandatory mask wearing and that the change was inserted in the February 2021 version of the Respondent’s Covid policy. Witness 1 stated that she was satisfied she treated all employees in the same manner and that the vast majority were in favour of the changed policy.

Witness 1 outlined her dealings with the Complainant’s Supervisor in relation to the Complainant’s statement that she was exempt from wearing a mask. The Witness stated that she then spoke with the Complainant and requested her to furnish a medical letter of exemption and maintain 2 metres distance in the meantime. The Witness stated that the Complainant produced a letter on 5 January 2021 dated 15 May 2020. She stated that following consideration of the Complainant’s letter by HR and the CRT, it was determined that the 15 May 2020 letter did not constitute an exemption. Witness 1 stated that she conveyed this to the Supervisor and the Complainant at a meeting on 6 January 2021 and explained that a current medical letter/certificate of exemption was required and that the Complainant did not have to provide details of her medical condition or medication. The Witness stated that she was satisfied the Complainant knew what was required. She stated the Complainant was not happy with this and that she “stormed off” seeking a meeting with the Director of Operations.

Witness 1 was cross examined on her evidence. Under cross examination she stated that she started work at 5am on 4 January 2021 in order to meet the employees. She stated she gave daily updates to employees on the Covid situation. She confirmed that the Respondent’s mask wearing procedures were signed off in February 2021 as the Respondent did not mandate mask wearing until January 2021. In response to a question she stated that the Respondent’s policy was a combination of its own and government policy. The Complainant questioned the Witness on the fact that she entered the Respondent’s workplace on 4 January 2021 without a mask and in reply the Witness stated there was an expectation she would have worn a mask and that Supervisors had a role in this. The Witness stated under cross examination that she did not tell the Complainant’s Supervisor that the Complainant was exempt from wearing a mask.

Witness 2 for Respondent/HR Manager:

Witness 2 outlined her role in the Respondent’s response to Covid-19 including as regards exemptions on medical grounds. As regards the Complainant’s GP letter of 15/5/2020 Witness 2 stated it was not sufficient, that it pre-dated the Complainant’s employment with the Respondent and didn’t refer to any requirement for an exemption. Witness 2 stated that she had regular interactions with the Complainant’s Supervisor, that the Complainant was informed on 6/1/2021 that an updated medical certificate was required and that the Complainant was not treated differently to any other employee.

Under cross examination, Witness 2 stated that the Respondent’s Covid policy and guidance was communicated via the Complainant’s Supervisor and via managers. Witness 2 stated that the Respondent did not require the Complainant to disclose medical information but rather to provide a medical letter/certificate in relation to the matter of exemption. She stated she was not aware of the conversation of 6/1/2021 where the Complainant stated that she was informed she did not have to wear a mask.

Witness 3 for Respondent/Former CEO:

Witness 3 gave evidence in relation to the Respondent’s business, its response to Covid-19 including the discussions in December 2020 and his email to employees of 31/12/2020 regarding the introduction of mandatory mask wearing from 4 January 2021. He stated that the policy was applied across the board, that it was broadly accepted by the workforce and that everyone was treated the same. Witness 3 stated that initially he did not see the Complainant’s GP letter of 15/5/2020 but accepted the opinion of his HR Manager that the letter was not sufficient – he stated that he remained of this view after he saw the letter. He stated that the CRT also considered the letter insufficient.

Witness 3 described his meeting with the Complainant of 6 January 2021. He stated he gave her a glass of water and explained the rationale for mask wearing, that masks were only required when moving from work stations and that visors were not acceptable after 4/1/2021. He stated that he advised the Complainant to obtain a medical letter/certificate from her GP if she wished to seek an exemption and that had she provided this it would have been accepted by the Respondent. Witness 3 stated that he was fully satisfied the Complainant understood the position and that he made it “crystal clear”.

Witness 3 was cross examined on his evidence. In response to a question as to why provision for an exemption was not referred to in his email of 31/12/2020, Witness 3 stated that the email was intended to cover the general new practice re mask wearing and that exemptions would be dealt with as the situation arose. Witness 3 stated that the Respondent’s Covid policy was an evolving document in response to developments, that training was required and that his priority was the health and safety of staff. Witness 3 stated that he had no medical qualification but understood the Complainant’s condition, that he accepted the Complainant was stressed at their meeting of 6/1/2021 and that he tried to relax her and engage in calm conversation. In response to a question that he advised the Complainant on 6/1/2021 that if she didn’t wear a mask there was no work for her –Witness 3 stated that the position was either wear a mask as required by the policy or obtain appropriate medical exemption and that the same applied to all employees.

In relation to the substantive complaint, it is the position of the Respondent that it did not discriminate against the Complainant or treat her less favourably or fail to provide her with reasonable accommodation. In that regard, the Respondent submitted that the Complainant had not identified a comparator for the purposes of establishing discrimination or less favourable treatment. The Respondent stated that the onus was on the Complainant to produce her own medical evidence in support of her contention that she should be exempt and that it was not obliged to refer her to a company doctor for this purpose. The Respondent argued that in all the circumstances the Complainant had not established a prima facie case of discrimination.

Preliminary Issues:

Section 2 of the Equal Status Act [2000-2018] 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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.

Section 3(1) of the Act provides that discrimination shall be taken to occur –

“(a)   where 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) or, if appropriate, subsection (3B)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

From the medical evidence submitted I am satisfied that the Complainant was suffering from a disability such that she was entitled to pursue her case under the disability ground of the Employment Equality Act [1998-2022]. This was not disputed by the Respondent.

Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021].

“77. A person who claims—

(a)    to have been discriminated against or subjected to victimisation……

(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(5)(b) On application by a complainant the Director General of the Workplace Relations Commission……may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”.

The Complainant’s last date in the workplace was on 6 January 2021. The Complaint Form was received by the WRC on 28/12/2021 – ie over eleven months from her last date in the workplace and/or from the last/most recent date of discrimination. This is beyond the six month time limit for bringing a case.  In relation to whether I should exercise my jurisdiction and extend the time limit to twelve months for reasonable cause, the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

In light of the foregoing, I must be satisfied that the Complainant has demonstrated there was a reasonable excuse as to why she did not submit her complaint within the prescribed six months of the last/most recent date of discrimination on 6/1/2021. I must also be satisfied that had there not been this excuse the complaint would have been submitted on time. 

The Complainant has cited various health issues as the reason for the delay and has provided extensive medical information in this regard. In her letter to the WRC of 26/1/2022 the Complainant stated as follows:

“I kindly ask for approval of my claim. The reason for the delay of my claim was due to health issues.

I am on sick leave since the 7th of January 2021. Last year was very difficult for me, my physical and mental health problems prevented me from sending this claim earlier. During this time, I had several investigations with different doctors. I’m still waiting an appointment with psychiatrist and counselling therapy……

I am attaching my unfit to work certificates from 7th January and onwards, letters from my GP, reports and referral letters from various doctors from 2021….”

In coming to my decision I have carefully considered all of the medical information provided by the Complainant including the medical certificates confirming unfitness to work throughout the remainder of 2021 and up to her resignation on 12/4/2022,  the letter of 28/9/2022 from Galway Primary Care which stated that the Complainant was unfit for work from 7/1/2021 – 28/8/2022, the Medmark Reports of 12/7/2021 and 12/10/2021 which both determined she was not fit for work and a letter from Galway Primary Care of 7/3/2022 which stated that the Complainant’s “…anxiety is ongoing despite medication as well as counselling….”.  I have also considered a further letter from Galway Primary Care of 12/1/2023 which stated as follows:

“[Complainant] was unable to complete any forms for the WRC from 7 Jan 2021 to and including 27 Oct 2021 at which date she was referred by me to La Nua Psychiatrist for specialist treatment of generalised anxiety including social anxiety and depression”.

Whilst I accept this letter of 12/1/2023 states the Complainant was unable to complete the WRC forms between 7/1/2021 and 27/10/2021, in my opinion this does not offer a reasonable or objective excuse as to why this was the case. Nor – in my opinion,  does the letter explain the factors which prevented the Complainant from submitting her complaint between 6/1/2021 (being the last date of discrimination) and 5/7/2021/six months later, nor address whether any such factors were/were not applicable or present in the subsequent six month period up to 5/1/2022/ie within the twelve month time limit.

In addition to considering all of the medical information provided by the Complainant I have also considered all the evidence, submissions and case law cited by the parties.

In all the circumstances, I find this complaint was submitted outside the six months time limit prescribed by Section 77 of the Employment Equality Act [1998-2022]. I also find that the Complainant has not made out reasonable cause as to why I should extend the time limit by a further six months as provided by Section 77(5)(b) of the Employment Equality Act [1998-2022]. Accordingly, I have come to the conclusion that I do not have jurisdiction to determine this complaint or consider whether or not the Complainant has made out a prima facie case of discrimination.

CA-00047852-001

For the reasons outlined this complaint is not well founded. 

Requirement to wear a mask, Disability, Time Limit