ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041556
Parties:
| Complainant | Respondent |
Parties | Sarah Mangan | University Hospital Limerick |
Representatives | Self Represented | HR Manager |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00052755-001 | 09/09/2022 |
Date of Adjudication Hearing: 03/05/2023 and 16/11/2023 and 1/2/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act and Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed. Post Hearing correspondence took place.
Background:
The Complainant alleged she was discriminated against by certain members of the Respondent security staff on visits made to the hospital for medical appointments. The key date of the alleged discrimination was identified by the Complainant as May 25th 2022. |
Summary of Complainants Case:
The Complainant alleged that on the 25th of May 2022 she was the victim of harassment as her dignity was violated, and an intimidating offensive environment was created towards her by Security staff in UHL.
The Complainant stated she was discriminated against based on an issue arising from her disability. The Complainant is Autistic.
The Complainant stated this was not the first time she experienced harassment by security in the hospital.
On the 25th of May 2022 at approx. 3pm at the back entrance to Limerick Regional Hospital, the Clinical Education and Research Centre, the Complainant stated she had a distressing interaction with the Security Guard stationed there. She stated she entered the building and a woman holding flowers and not wearing a mask was approaching the door. The relevance of this to the complaint is the Complainant stated she did not see her being questioned by security. The Complainant proceeded into the building. There was a tall man in front of the Complainant and a woman behind her. While the man in front was approaching security the Security Guard stationed there pulled his face covering back up fully and did not stop this man or question him. The Security Guard, as the Complainant approached stopped her and gestured behind her to a hand sanitizer station and masks were also there. The Complainant sanitised her hands and was going to continue into the hospital when the Security Guard gestured and said about a face covering. The Complainant told the Security Guard she is exempt from wearing one and she alleged he scoffed and rolled his eyes. The Complainant told the Security Guard she was not going to tell him what disability she has as it was none of the peoples business who were within ear shot, what disability the Complainant has.
The Security Guard questioned the Complainant where she was going and the Complainant told him for bloods and then an MRI, The Complainant was holding specimen pouches for the bloods. The Complainant stated the Security Guard told her in an aggressive manner that he was not going to argue with her. The Complainant said she was not arguing with him and that he said then he was just doing his job the Complainant said “I'm going to go in”. The Complainant alleged the Security Guards manner in her opinion was hostile and aggressive to her. She denied she just walked away from the Security Guard. She stated he was insinuating that she was being argumentative in front of people making out that she was a problem with no regard for her dignity. The woman that was behind the Complainant while this interaction was happening went past between the Complainant and the Security Guard did not stop her and the Security Guard did not ask her where she was going. The Complainant stated the woman was not a staff member so why was she not questioned as to where she was going and she wasn't because she was wearing a mask.
The Complainant stated she was targeted like she had been targeted in the hospital before because she is unable to wear a mask. The Complainant stated she has been stopped multiple times when other members of the public have not, these people walk by unquestioned but she alleged she is treated like a criminal. The man who walked in front of the Complainant was not stopped (the Complainant was unsure if he may have been a Doctor) and he was not asked where he was going. The Complainant stated the woman after her was not stopped and asked where she was going, but alleged it was perfectly acceptable to accost her and try prevent her access to a public hospital. The Complainant questioned why she was being asked where she was going and that the other people were not.
The Complainant continued into the hospital into phlebotomy where she met a lovely nurse who was extremely pleasant and caring. After her bloods the Complainant went to the main reception of the hospital, where she met a man behind the desk. She asked him for the complaints department number, he asked who she was making a complaint against, and she said against security. He then told the Complainant to wait and then contacted someone by the phone before giving her the number, he told her how to dial the number by using the hospital phone or her own phone. The Complainant went outside and rang this number multiple times no one answered and there was no voicemail option on it. The Complainant was waiting for her MRI appointment which was a 17.10 so she went back to her car to wait. The Complainant then went in a different entrance so she would not have to deal with the Security Guard at the back entrance again and she also wanted to get another contact for complaints off reception. There was a woman at reception this time and approximately 4 Security Guards huddled adjacent to it. The Complainant asked the lady at reception for another number to make a complaint against security as the number she had been given was ringing out. The Receptionist asked what number she had been given and gave the Complainant another number to ring. The Complainant then proceeded inwards to go for her MRI, The Complainant was followed by a Security Guard and stopped at the security desk by the guard stationed at it when the Security Guard who was tailing her, then inserted himself to her right near the corner in the way of her path. The man stationed asked the Complainant where she was going, The Complainant said she had an appointment and the Security Guard gestured to his mouth and said mask. The Complainant said she was exempt as she had a disability. The Security Guard then asked where the Complainant was going, the Complainant asked why and the Security Guard said he has to ask to put it into the book and the Complainant told him she was going to the MRI and asked was that alright with him. The Complainant stated she was then 'offered' to be shown where the MRI was and she said she knew where it is. The Complainant stated the Security Guard who had followed her to the desk also tried to show her and the Complainant said no she knew where it was.
The Complainant believes this was an intimidation tactic used by security. In relation to this 'book' that her movements are being recorded in, the Complainant questioned who is the Data Controller of that and under what legislation is it being gathered.
While waiting outside the MRI department the Complainant rang the number the receptionist gave her. A man answered, and the Complainant asked what section she was on to, he asked why and the Complainant said she wanted to make a complaint and the Complainant wanted the complaints departments number. He put the Complainant on hold, a then a man who identified himself as John Howard came on the phone. The Complainant asked him for the complaints department and he asked why and the Complainant stated she wanted to make a complaint against security for harassment due to discrimination because she was being targeted by security staff and stopped when others were not. Mr. Howard then proceeded to say were those people not stopped wearing hospital badges. The Complainant interjected because she knew this was the excuse he was going to try and said no they weren't hospital staff and they weren't stopped. The Complainant then stated he then said sarcastically “Oh right yeah”. and the Complainant said she wanted to bring the complaint further. Mr. Howard said he's the security manager and the Complainant said she still wanted her complaint to go higher up. The Complainant asked for the section and who was above him and she stated Mr. Howard said 'I don't have to give it to you because GDPR'. The Complainant stated she had googled and a Ms. Linda Fahy is on the HSE website as the manager so it's not a GDPR issue when that information is on the website and that the Complainant can't be prevented from making a complaint. Mr. Howard said he doesn't answer to Ms. Fahy and that his boss is a man in Dublin and the Complainant said she would find it and will be making a complaint. She stated Mr. Howard then said smugly that he is looking forward to it and that they have people making this complaint before that they are well used to it and people like the Complainant. It seemed to the Complainant he was inferring that her complaint won't make a difference. He also asked if the Complainant was still in the hospital during this conversation and she said yes, he then started to push the Complainant for an answer as to what part of the hospital she was in, which she don't see why it was relevant and the Complainant suggested it's another intimidation tactic.
The Complainant complimented many staff on how she was treated.. As a person with a disability who faces barriers in society on a daily basis, the Complainant stated she wants it known that she thinks it is disgusting that she cannot avail of a public service without being treated with hostility. She stated.in all the years and appointments she has been to in the hospital she has never been asked by security to be brought to a section of that hospital, She stated she finds it extremely offensive and an attempt to degrade her by making other people in the area see her as some sort of threat. The Complainant questioned were the Security staff insinuating that she was a liar or because she has a disability and that she was unable to walk to an area unaided. The Complainant stated she does not know anyone who has been offered to be escorted to a department of the hospital by security
The Complainant stated that when she left and was going back to her car a Security Guard was standing on the grassy hill by the entrance to the back carpark watching her while on a walkie talkie. The Complaisant did not think this is a coincidence either.
The Complainant stated she did think it is acceptable the way she had been treated in the hospital by security. She did not think it is acceptable that the security manager tried to prevent her from making a complaint. She alleged staff in the Breast Unit harassed her and brought her to tears, staff lied to her about her MRI brain results which she only found out the results when she requested her records. The Complainant alleged she had to discuss her private medical business in a corridor of A&E with doctors with members of the public listening. The Complainant stated that when was admitted to hospital when she had ileitis, bloods for a TB test were taken and lost and had to be taken again.
The Complainant stated she was sick of the treatment she receives in the hospital and it causes her massive amounts of anxiety and stress going into the hospital, where the last time she needed to go to A&E the paramedic had to talk her into going in and she alleged she then was let leave the hospital with a cannula still in her arm. She alleged the way the Hospital treat people with disabilities is shameful.
The Complainant stated that the ‘reasonable accommodation’ she was given by PALs in University Hospital Limerick was not reasonable or helpful in accessing hospital services. Nor was she required by legislation to request ‘reasonable accommodations’. The Respondent was notified on the 03/06/2022 of her complaint in writing by email, and she received a letter in an email dated the 7/06/2022 stating they a Complaints Officer will be investigating her compliant and they hope to have a response by 15th July 2022.
The Complainant stated she was apologised to in the letter she received after teams meetings with the Respondent in June 2023 for the experience she had there. She was not told about video footage in this meeting and this meeting was more apologetic in tone to her as per quote “I would firstly like to apologise to you for the experience you had here at University Hospital Limerick during which time you were attending for an appointment”. “I would also like to recognise your willingness to make yourself available to discuss any initiatives or any advice I may have in the future regarding how to improve our service for patients with additional needs.” The Complainant stated this doesn’t paint the picture of someone who is rude like what was being portrayed in the submission from Respondent to the WRC about her and questioned why would the Respondent want to engage with her on future initiatives if she was rude like she was being portrayed in the Respondents defence statement.
Subsequent to the Complainant making the complaint to the WRC she was not ‘seen’ at her appointment on the 15th of November 2022. This was a telephone appointment and the Complainant waited all day for a call she did not receive, She made a complaint about this. Then she was given another appointment by telephone where she was told she would be booked in for a ‘procedure’ by a consultant who has not examined her. The Complainant stated she would not be surprised if she was not given the appointment due to victimization for making a complaint against the hospital. The Complainant questioned the legal right of the Respondent to ask her to wear a mask.
Upon the discovery of cctv footage through the Respondent submission the Complainant requested video footage on the 15/09/2023 and was informed to request it from IGO.ULHG@hse.ie. The Complainant did this and received no response from them. The Complainant emailed the data protection unit ddpo.west@hse.ie and the IGO again on the 18/10/23 this email was forwarded to ddpo.south by ddpo.west. The Complainant also resent the data video request to ddpo.south on the 24/10/23 and has have still not been given a response nor the footage she requested.The Complainant questioned why the video footage has not been supplied, where it is stored and who has seen it.The Complainant alleged the Respondent has violated her dignity and privacy by downloading and sharing video footage of a disabled person.,
The Complainant asked the Adjudicator to consider Section 26 of the Act.
“26.—If, in the course of an investigation under section 25 , it appears to the Director—
(a) that the respondent did not reply to a notification under section 21 (2)(a) or to any question asked by the complainant under section 21 (2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director,the Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c”
The Complainant alleged she was the victim of harassment as her dignity was violated, and an intimidating offensive environment was created towards her by security in UHL. The Complainant alleged she was discriminated against based on an issue arising from her disability and she was seeking redress in respect to this prohibited conduct as per Section 27 of the equal Status Act.
On the 25th of May 2022 the Complainant alleged she was discriminated against as per Section 3 (1)(a) ‘a person is treated less favourably than another person is, has been or would be treated’. The Complainant quoted other sections of the Act, namely Section 27 dealing with Redress and Section 33 dealing with the powers of the Adjudicator to seek material information. The Complainant did not specify any particular requests under these sections.
Summary of Respondents Case:
The Respondent has implemented a “Your Service Your Say” quality initiative framework surrounding the complaints process for all users of HSE funded services. “Your Service Your Say” process is a way to provide feedback to the HSE from service users and can be utilised by an online portal, phone call or paper based and submitted via the “Your Service Your Say” boxes at designated locations in the hospital. The policy invites all health service users to have their say about their experience of the health services and how services have been delivered.
The Respondent recognize the unacceptable delay in reverting and responding to the Complainants “Your Service Your Say” is a process which provides a framework by which designated trained HSE Complaints Managers support an unbiased investigation into a complaint made by the Complainant whilst taking the Respondent into consideration to reach a conclusion which in turn supports recommendations. Following on from the conclusion of this investigation if there is an opportunity permitted to investigate under the “Your Service Your Say” process, there is an opportunity to implement quality initiatives and or take other action under code of conduct in relation to any findings, which are not conducive to our core values to be caring, courteous and professional.
On the 25th May, 2022 the Complainant presented to the UHL site for an appointment. As articulated the statement by Security Officer Mr. NA who was on duty at the CERC entrance monitoring visitors presenting through the door. Mr.NA requested the Complainant to put a mask on as she was entering into the hospital site. The Complainant allegedly raised the tone of her voice to the Security Officer and informed the Officer "1 am exempt from wearing a mask". Mr. NA tried to explain to the Complainant that she would need to wear a mask when entering into the hospital but the Complainant unfortunately walked away giving out to security. At 16:49 while Mr. NA was taking a call on his mobile outside the daffodil center near the reception area he observed the Complainant approach the Security desk where Security Officer Mr. WOD was monitoring visitors into the hospital and Mr. WOD requested that the Complainant wear a mask as he would do with any individual entering or progressing through the hospital as per national guidance at that time. Allegedly, the Complainant in a rather rude manner explained to Mr. WOD that she was exempt from wearing a mask and she proceeded to walk away. Security officer Mr. AW asked the Complainant where she was going to and the Complainant replied she was going to the X-ray Department. Mr. AW advised the Complainant of the area which to proceed to in order to help the Complainant on her way to find the X-ray Department.
At 17:10 there was a call to the Security Manager from the Complainant which outlined the Complainant wished to make a complaint about security. Mr. Howard the ULHG Security Manager spoke to the Complainant who informed Mr.Howard "you are the man I have been trying to get on the phone all day". Mr. Howard explained he had not been made aware of any person looking to speak to him on this day. The Complainant then went onto state she had been harassed by Security Officers all day as she was not wearing a mask, Mr. Howard tried to explain to the Complainant that it is the role and responsibility of Security Officers to advise members of the public and patients entering and mobilizing through the hospital to wear a mask. The Complainant unfortunately did not like the reply she was given by Mr. Howard and asked to speak to a person of further seniority other than Mr. Howard. Mr. Howard offered the names of Ms. LF or Mr. AH to have communication with but unfortunately the Complainant informed Mr. Howard "you are wasting my time" and she hung up the phone.
The footage of this incident had been downloaded and viewed by Ms. Maria Quirke, General Manager Operational Services. Having reviewed the footage Ms. Quirke could not ascertain that the Complainant had been treated in a manner which was unfitting by Security nor in a manner which undermined the dignity afforded all members of the public. Having viewed the footage she could not ascertain nor agree the Complainant had been treated differently and she could not see any difference to how all patients and members of the public are treated.
The recollection of events dated the 25th May, 2023 and signed by Mr. Howard Security Officer and that of the recollection of three other Security Officers differ from the Complainant's account. The review of the CCTV footage by Ms. Maria Quirke cannot determine nor confirm what the Complainant has stated on her complaint dated the 3 rd June, 2022.
There was an unfortunate delay due to resource challenges and the transfer of personnel within Operational Services and as such there was a delay in responding to the Complainant's complaint which the Respondent have apologized for.
Ms. Quirke noted from correspondence the Complainant requested that she record phone calls made to her by the Business Manager in an email dated the 10th May, 2023. Ms. Quirke reached out to the Complainant on the afternoon of the 11th May, 2023 to discuss the Complainant's complaint.. Maria Quirke wrote to the Complainant to set up a meeting on the 17th May, 2023. The Complainant did not present for a teams call as set up by Ms Quirke and teams calls took place with the Complainant on the 9th June, 2023 and the 23 rd June, 2023.
The Respondent wrote to the Complainant dated the 28th June, 2023 to close out
the complaint in response to complaint raised and sets about a number of
recommendations for Security staff, all members of the public and patients.
The findings/actions following the investigation were as follows;
Mr. Howard to meet with the security personnel who you met on the day of the 25th May, 2023 — (the Respondent advised this meeting has taken place).
Mr. Howard to meet and discuss the ULHG mission statement with his team emphasizing the absolute necessity to treat each and every patient with dignity and respect — (this meeting has taken place).
It is not proven the Complainant was treated in a discriminatory way.
The Respondent advised the security managed services was going to procurement tender shortly and it would be mandatory for the provider to ensure regular customer service training— (this is in progress and as an interim Mr. Howard has assured Ms. Quirke all security personnel will participate on customer service training and this will formulate a part of Mr. Howard's balance score card monthly to the Directorate as a return). This is to provide assurance to UL Hospitals but again it is undetermined the Complainant was treated in a discriminatory way.
The Facilities Manager will monitor this balance score care return from Mr. Howard — (this is in motion and there is a plan in place).
The Business Manager of Operational Service, who manages patient feedback will review complaints and trend for security related negative feedback to measure the quality measures which have currently been implemented — (there is a plan in place). The Respondent stated of note there is nil of concern to date.
The Complainant was advised that in the event she needed additional support going forward from the University of Limerick Hospital Group the Patient Advocacy Liaison team are contactable on the following email address UHLPaIs@hse.ie if the Complainant wishes to have this support in the future.
In summary, following an investigation UL Hospitals did not uphold the Complainant's claims as there was no evidence to support the allegations. However, UL Hospitals do take patient feedback very seriously and quality measures are put in place to enhance the patient journey. The Respondent had scheduled disability awareness training scheduled for the 29th November, 2023.
The Complainant was offered an appeal of the review and she did not request
a review of the complaint and informed Ms. Quirke via teams she was satisfied
and the matter was closed out.
The Respondent was unable to determine if the events alleged took place and could not ascertain any evidence to prove what the Complainant was articulating following conversations with 4 members of security who all recollect the Complainant as being allegedly rude and behaving in a manner which was allegedly inappropriate.
The Respondent submitted the Complainant had failed to establish facts from which it can be presumed that there has been discrimination on the disability.
Findings and Conclusions:
Key Chronology of Events The Complainant submitted that the first incident of discrimination took place on 26/3/2021 but the main focus of her complaint related to events on 25/5/2022. The Complainant wrote to the Respondent on 3/6/2022 and received a reply on 7/6/2022 that her complaint would be investigated with a date of 15/7/2022 as a further response date. Due to unexpected absence and internal reassignments no reply to the Complainants complaint was provided by that date. The Complainant submitted her complaint to the WRC on 9/9/2022. On the 15/11/2022 the Complainant was due to have a phone call with a Consultant on another issue but the call did not take place and the Complainant alleged she was not called due to her making a complaint about the events of 25/5 and it was showing the Respondent was continuing to discriminate against the Complainant. An initial WRC Hearing into the complaint was held on 3/5/2023. At the Hearing the issue of jurisdiction was raised by the Adjudicator. Section 21 of Equal Status Act 2000 as amended requires that a Complainant: (2) Before seeking redress under this section the complainant— ( a) shall, within 2 months after the prohibited conducted 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 , (3) ( a ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may — (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly. ( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including — (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent ’ s ability to deal adequately with the complaint. The Complainant advised in her complaint form that the last date of the alleged discrimination took place on May 25th 2022. The Complainant did not notify the Respondent within the required statutory time frames of the Act (before 2 months and to a maximum of 4 months for reasonable cause) that she would “seek redress under this Act”. Therefore, per clause 21(2) of the Act the Complainant did not comply with the requirements of the Act and the Adjudicator advised at the Hearing that he would be statute barred from hearing evidence into the substantive complaint and issuing a decision on the substantive complaint. However, given the Complainants disability and the fact the Respondent advised they were willing to conduct an investigation into her complaint (which the Representatives stated they only became aware of the day before the Hearing and which had been communicated to the Respondent the previous June with no progress/outcome) the Adjudicator felt obliged to advise the Complainant of Clause 21 (3) above. The Complainant did not make an application at the Hearing to invoke Clause 21 (3) above and the Adjudicator gave the Complainant two weeks from the Hearing date to consider making such an application. The Adjudicator advised if this application was made the Respondent would be given the opportunity to reply with their consent/views/objection to be considered by the Adjudicator. The Complainant did submit an application to invoke clause 21(3) and the Respondent advised they had no objection to this application being granted. The Respondent has a customer service investigation programme called “Your Service Your Say” which the parties agreed to try utilise to resolve the issues. This was necessary to invoke so the Respondent was given the time and opportunity to understand and investigate the complaint thoroughly and so it would not be disadvantaged by granting the application under Clause 21 (3). Team calls were held between the parties in June 2023. The Respondent listed a number of actions arising from the investigation, did not uphold the complaint and understood the Complainant advised them she was satisfied with the outcomes and the matter was closed. The Complainant was advised on 17/5/2023 of the opportunity to make contact with the Patient Liaison Unit for any future visits if she wished. A further WRC Hearing was scheduled for 16/11/2023 and unfortunately due to a communications issue the Respondent advised they were not informed of the Hearing. A further Hearing was held on 1/2/2024 where submissions were heard. The Law Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. The applicable Law; “6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds 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”),” Evidence of the Parties The Complainant advised the Hearing that she attended the Hospital on May 25th 2022. She said she was stopped from entering the Hospital. She advised a Security Officer pointed her to the sanitisation area. She stated she did not inform the Security Officer she had a disability. She stated she had a mask with her (but not wearing it) and was holding bloods. She stated the Security Guard said “Im not arguing with you”. She advised this was not the first time she was harassed by Security and she wanted to make a complaint. The phone she rang did not answer. She advised she had to wait for a later MRI appointment and she tried to look up how to make a complaint. She advised she found the name Linda Fahy as the person to make the complaint too. She advised she went back to MRI and was stopped again. She approached Reception and there were 4 to 5 Security Guards there. She moved away and was stopped by another Security Guard and asked where she was going. She stated the Security Guard blocked her way. She stated they wanted to bring her to MRI and she replied “I know my way” and she felt they were going to escort her around the hospital. She proceeded to MRI. The Complainant then got onto Mr. Howard, Security Manager and stated she wanted to make a complaint. She stated he said “Oh right yeah” and “Ive dealt with plenty of people like you”. She stated he said Linda Fahy was not over security and he reported to Dublin. The Complainant alleged she was prevented from making a compliant and that she felt harassed by the Security Guards. She stated she did not present any documentation regarding and exemption and told Mr. Howard she did not have to wear a mask. She advised she did not have a certificate that a mask was not required. She then made a formal compliant within a week and she felt she got the run around with her complaint. Ms. Maria Quirke, General Manager Operations, gave evidence for the Respondent. She stated she was in the post since May 2023. She advised they had policies to help people follow the safe guidance for Covid protection. She advised they need proof of a disability and the rule was to advise all people re mask wearing and hand sanitising. She advised the person admitted in front of the Complainant was wearing a mask. She advised there was only one Security Guard at the entrance where the Complainant entered. She advised the Complainant progressed through the hospital without wearing a mask. She advised that at other areas people were asked about the use of a mask. She advised it was highly unlikely there were 4 or 5 Security staff in Reception as they were tasked with performing patrols in the hospital. She advised that things can be perceived differently; she perceived the Security Guard asking to assist the Complainant to MRI and the Complainant saw it as something else. Ms. Quirke stated that she understood how the Complainant felt and the Complainant informed her she was satisfied with the outcome of the investigation. She advised Security would never interfere with someone’s appointment in the Hospital. She advised Security staff alleged the Complainant was abusive to them. She felt Security staff were placed on the back foot and several voices were raised. She advised the Garda could be called on other scenarios but were not on this occasion. The Complainant cross examined Ms. Quirke and asked was she not told to bring a letter of exemption. Ms. Quirke advised this it was the general policy at the time that people had to wear a mask. The Complainant asked Ms. Quirke was it general policy to stop people entering the Hospital and Ms. Quirke advised Security sometimes stop people from entering. Ms. Quirke was asked about treating people with disabilities with respect and Ms. Quirke stated they was no objective bias against the Complainant or people with disabilities. Mr. John Howard, Security Manager gave evidence to the Hearing. He advised that Security staff treat people with respect and know what is required. He confirmed he spoke to the Complainant on the phone. He advised that security was essential. He advised that the allegations of how security people spoke did not resonate with him and his own demeanour was normally quite. He advised there was a directive to Security that people had to wear a mask. Evidence of a Disability: The Complainant submitted a medical certificate post the Hearing in February 2024, dated 9th July 2021 which confirmed the following “This is to confirm that you meet the DSM- 5 criteria for Autism.”. The certificate is signed by a Clinical Psychologist based in Dublin. I accept that Autism is a form of disability. The Complainant confirmed in writing her consent to the sharing of this certificate with the Respondent on 2/2/2024 and it was admitted to evidence.
In her complaint, the Complainant stated she had sensory and auditory issues and could not wear a face mask. She also stated “it is easier for me to follow what is said if I can see the mouth move particularly in a noisy and stressful environment”. The Complainant did not have a medical certificate which stated any of the above. I conclude the use of a Face Mask would not have diminished the Complainants ability to see a mouth move making that part of her complaint difficult to justify.
The Complainant alleged that the Hospital had been provided with her Disability information and it was on her medical file at the time of the events on 25/5/2022 and she expected that the Security staff would have been informed of her situation. No evidence was provided that the Respondent had been provided with this information nor was it contested. Either way, if it were on file the expectation from the Complainant, that at the time of the incident on 25/5/2022 that Security Staff would be aware of her disability, is not realistic and the sharing of this information, if it did exist on her medical file, would neither be standard practice and would contravene the Complainants right to privacy. Likewise.no mention of any exemption from wearing a Face Mask was contained in the Disability assessment.
The Complainant made the point that If Security had followed up and not just harassed her they could have satisfied themselves of her disability if they so wished. This again is not a realistic scenario, divulging a patients situation to a Security Guard, without the patients written consent, is not reasonable to expect and n mention of being exempt from wearing a face mask was contained in the Complainants disability diagnosis. Use of Face Masks
The Respondent stated that all members of the public attending the Hospital had to wear a mask in line with national guidelines and especially so entering a medical premises. If an exception was to be allowed then the person seeking the exception had to provide medical evidence that required the exemption. The HSE guidelines on their website at the time were clear that they would require a person to wear a Face Mask entering a medical facility and in general it would be inconceivable that the Complainant was not aware of the general national guidance and the specific guidance at the time regarding the wearing of face masks to stop the spread of the Covid 19 disease. Specifically, the national requirement to wear a Face Mask in public settings and Transport etc was removed on February 28th 2022 but it was still a mandatory requirement according to Nphet to wear one in medical settings. This mandatory requirement for medical settings was not removed until April 2023. Therefore, it was a mandatory requirement at the time of the events in May 2022 in a hospital environment. The Respondent submitted 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 her appointment. Despite this the Complainant proceeded past the Security Guard in the lobby without a face mask covering to enter a clinical setting and did not offer or produce any evidence of exemption. It was submitted that any person behaving in the same manner would also have attempted to be stopped by the Security Guard and refused entry; and the Security Guards response was linked directly to the behaviour of the Complainant and not to any alleged disability. The Complainant alleged other members of the public were allowed enter without a face mask but supplied no evidence to support this and conceded some of the people entering the Hospital could have been medical staff. The Complainant sought sight of the video of the day in question but the Respondent stated this was not supplied for GDPR reasons as it would show other members of the public, who were entitled to their privacy. With regard to the issue raised that the Complainant was harassed and followed by Security staff my finding is the Security Staff were only doing their job and had a duty to seek the Complainant to wear a mask. The question of logging the whereabout of people is not core to the decision, as in many settings at the time, including WRC Hearings, all present had to identify ad give phone numbers in the event of a person contacting Covid. The Complainant has to accept that the onus rested with her fully to provide a medical certificate stating she was exempt from wearing a mask, if that was the medical diagnosis. Expecting Security staff to be aware of every persons medical conditions entering a hospital is not realistic. Security staff had the obligation to question any person, with or without a disability, about why they were not wearing a mask. With regard to the Complainant being harassed when she wanted to make a complaint there was contradictory evidence on the matter but the core outcome was the Complainant made a formal complaint within a week. The November 25th 2022 Appointment and allegation of ongoing Discrimination The Respondent wrote to the Complainant and advised her that having spoken to the person making the appointments that here was a mix-up in appointment dates. An appointment letter went out with the 25 th of November on it, and the appointment should have been for the 26 th of November. The Consultant apologized for the confusion regarding the appointment and he did try to make contact with the Complainant on Saturday 26th November. A new appointment letter was issued by the Respondent immediately. I find this to be a simple administrative error and not relevant to the substantive issue.
Conclusion 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.” My conclusion is this section is not relevant as the Security staff were treating People with or without disabilities the same regarding the use of face masks.
The core issue is the Complainant twice entered a Hospital setting during the Pandemic, went into various areas of the Hospital, with vulnerable people present, and without wearing a required face mask or having an exemption to not wear a mask. She was rightly questioned and queried by Security about the situation. Security staff needed to know her whereabouts in case of becoming aware of an infection afterwards. The Hospital had a significant duty of care to their patients and staff to ensure people wore masks. While I understand the Complainant has an autism disability this did not exempt her from the rules applying to all members of the public entering the Hospital. There was no evidence to support the Complainants allegation that people without a disability where not questioned about the use of a mask entering the Hospital.
I conclude the Hospital behaved reasonably by asking the Complainant about the use of a mask. The Complainant must have known everyone else was required to wear a mask and she was, in effect, asking for special treatment. The Complainant unreasonably believed the Security Guards were singling her out and in the expectation they should know about her disability. Even if they did know of her disability the Complainant would have been required to have a medical certificate exempting her from the wearing of a mask. In the circumstances of the Covid-19 there was an onus on the Complainant to bring a certificate to the Hospital exempting her from wearing a mask. If she had provided this it would have avoided all the events and distress that subsequently occurred. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
For the reasons given above I find the Complainant was unable to establish a prime facie case of discrimination under the Equal Status Acts and the Complainant was not discriminated against. |
Dated: 21/03/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Discrimination |