EDA2332

1. Appeal of Adjudication Officer Decision No(s). ADJ-00034955 CA-00046083-001

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 15 February 2023. A Labour Court hearing took place on 26 July 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by G Bruss Gmbh Dichtungstechnik against the decision of an Adjudication Officer in a claim of discrimination on grounds of disability brought by Kamila Pietrzyk. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act).

The parties will be referred to herein as they were at first instance. Hence the employer will be referred to as the Respondent and the worker as the Complainant.

The Adjudication Officer found that the complaint was well-founded and awarded the Complainant €10,000 in compensation.

Facts

The material primary facts of this case are not in dispute and can be summarised as follows:

The Complainant was employed by the Respondent from July 2017. She commenced a period of certified sick leave from 7^th December 2020. She did not return to work and commenced a period of unpaid absence from August 2021. In March 2022, the Respondent advised the Appellant that she could return to work but, having taken up other employment in September 2021, she declined to do so.

The within complaint was made to the Workplace Relations Commission on 10^th September 2021.

In November 2020 the Government published a Work Safely Protocol in the context of the global COVID pandemic.

The Respondent introduced a face covering policy on 23^rd November 2020 and all employees were given one weeks’ notice of the mandatory requirement to wear face mask which would be introduced on 30^th November 2020. The policy provided that the wearing of masks would be mandatory for all employees in communal areas, when transiting to and from workstations, when unable to maintain two metre distancing from colleagues and when away from workstations.

The policy was introduced following approval by management, the health and safety committee and the company doctor.

The policy did not require the Complainant to wear a face mask at her workstation.

On 30^th November 2020 the Complainant advised her manager that she had a medical issue which she did not wish to discuss. As a result of that medical issue, she would be unable to wear a face mask.

The Appellant was absent through medically certified absence from 7^th December 2020 until August 2021 and thereafter was absent on approved unpaid absence until the apparent termination of her employment in September 2021.

Summary of the Complainant’s case

The Complainant’s case is based on the proposition that in refusing to allow her to attend her workplace without wearing a face mask she was denied access to her employment. She was unable to wear a face mask because of a certain medical condition which prohibited her from so doing. That medical condition amounted to a disability within the meaning of the Act. She had put forward suggestions as regards accommodations that could have been provided to her which were not implemented by the Respondent.

The Respondent indirectly discriminated against the Complainant on grounds of her disability.

The Complainant submitted that through her trade union, she did make proposals which, if accepted by the Respondent, would have allowed her to attend work in a manner which would have mitigated any risk arising from her not wearing a face mask in common areas and while transitioning to her work station where she was not required to wear a face mask.

Summary of the Respondent’s case

The Respondent submitted that no discrimination occurred and that no failure to provide reasonable accommodation to the Complainant occurred.

The face covering policy of the Respondent was introduced in November 2020 in response to the global pandemic then in being and all relevant national and global guidance. All employees were required to wear a face covering in circumstances where two metre distancing could not be maintained. In effect, that meant that employees were required to wear face coverings in communal areas but not at work stations. No requirement rested upon the Complainant to wear a face covering at her work station.

The basis for the introduction of a policy included a risk assessment, engagement by medical and health a safety structures in the workplace and the obligation on the Respondent to maintain a safe and healthy workplace for all employees.

The Complainant did put forward proposals for changes to be made to the workplace and workplace arrangements in order to mitigate the risk to her and to others employees of her non wearing of a face covering, but the assessment of the Respondent was that any such suggestions were impractical or not capable of providing the appropriate level of protection to the staff of the Respondent.

The Complainant did not provide any evidence of an alleged disability until June 2021 when her trade union provided a letter from a consultant psychologist.

The applicable law

Section 6 of the Act prohibits discrimination on any of the discriminatory grounds. Subsection (1)(a) of that section provides: -

• (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where
  • (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

    (i) exists,

    (ii) existed but no longer exists,

    (iii) may exist in the future, or

    (iv) is imputed to the person concerned,

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

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

A fundamental feature of the law on equal treatment is that it prohibits differential treatment on any of the discriminatory grounds. The law is directed at achieving substantive equality and its focus is on substance rather than on form.

In a line of authorities, the CJEU has held that discrimination can arise not only from the application of different rules to comparable situations but also by the application of the same rules to different situations (see Case C-279/93 Finanzamt Koln-Altstadt v Schumacker [1995] E.C.R. I-225 par 30).

Discrimination can be direct or indirect. Article 2 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, defines indirect discrimination as follows: -

• “Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

• “(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

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

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
  
  

In this case the Complainant claims that she suffered discrimination on grounds of disability. In substance, the Complainant’s complaint is that her inability to wear a face covering which arose from her disability gave rise to the disadvantage which she claims to have suffered.

That principle of anti-discrimination law enunciated in Schumacker was applied by this Court in Campbell Catering Ltd v Aderonke Rasaq 15 [2004] ELR 310. In that case the Court held that a woman of African nationality, who had a poor command of English and was unfamiliar with Irish employment practice, was discriminated against by being subjected to the same disciplinary process as that applied to Irish workers in similar circumstances. The rationale of the Court’s decision was that the Complainant, Ms Rasaq, was subjected to a process which she did not understand whereas an Irish worker would have the benefit of a process that he or she would have understood.

That is a classic case of applying the same rules to different situations. That constitutes different treatment by application of the principle formulated by the CJEU in Schumacher and consistently followed in the jurisprudence of the Court of Justice and of this Court.

In the within matter, the Complainant contends that an apparently neutral condition, a mandatory requirement to wear a face covering, had the effect of preventing her from attending work because of her disability. That disability had the effect, she contends, of preventing her from wearing a face covering.

It is clear that the Complainant insisted at all material times that she was unable to wear a face covering. There is some dispute as to whether she provided any substantive medical grounding for such an inability before June 2021 when her trade union provided the Respondent with material which could amount to medical support for the contention that the Appellant had a disability within the meaning of the Act.

For the purposes of the Act, the Court is satisfied that Complainant has established a prima facie case of discrimination and that the burden of proving the absence of discrimination shifts to the Respondent.

The Respondent contends that no discrimination took place but, if it is found that the mandatory condition of wearing a face covering is found to have indirectly discriminated against the Complainant, there were, within the meaning of the Act, objective grounds justifying the existence of that condition.

The established jurisprudence shows that in order to avail of a defence of objective justification an employer must show the impugned condition, criterion or practice: -

(a) Is unrelated to a discriminatory ground,

(b) Corresponds to a real and legitimate need on the part of the undertaking,

(c) Is an appropriate means of achieving that need and,

(d) There are no less discriminatory means of achieving that need.

In this case the Respondent relies on the need to ensure the health and safety of the entire workforce in the context of a global pandemic as the objective justification for the Respondent to require all employees to wear a face covering in communal areas. It is not disputed that the global and national health authorities giving advice and guidance at the material time emphasised the wearing of a face covering as a measure which would have the effect of minimising rates of infection by a virus which could and did have a serious and often fatal effect on many people. It is not disputed that the requirement to wear face coverings in the Respondent’s premises in November 2020 followed appropriate risk assessments and consideration by the Health and Safety experts on the premises and the Respondent’s medical adviser.

The Court is satisfied that the requirement to wear a face covering was unrelated to a discriminatory ground, that it corresponded to a real and legitimate need on the part of the undertaking and was an appropriate means to achieve that need. Furthermore, in the context of a potentially fatal virus having a national and global impact, the proposals of the Complainant to minimise but not remove the potential transmission of the virus to the Complainant and other workers on the premises cannot be considered as a reasonable accommodation which the Respondent could have been expected to provide.

It is clear that the various steps proposed by the Complainant, including the staggering of start times and breaks and the introduction of antigen testing for the Complainant if not the entire workforce in order to accommodate the Complainant were considered by the Respondent including by taking the advice of the company doctor.

There is no submission to the Court that if the Respondent had, notwithstanding what were contended by the Respondent to be the practicalities and challenges involved, adopted the various measures proposed by the Complainant, the objective of protecting the health and safety of persons employed in the Respondent’s premises could have been advanced to the extent that would be achieved by the requirement to wear face coverings.

In those circumstances, the Court cannot conclude that less discriminatory means were available to achieve the real and legitimate need on the part of the undertaking at the material time.

In these circumstances, the Court is satisfied that the stance adopted by the Respondent was wholly proportionate to the need of the undertaking to preserve and protect the health and safety of all employees to the maximum extent possible having regard to all available expert advice. It follows that its defence of objective justification of the requirement on all staff to wear face coverings at the material time must succeed.

Decision

For the reasons set out herein, the Court is satisfied that the Complainant was not unlawfully discriminated against on grounds of disability. The appeal therefore succeeds.

The Decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
22 August 2023	Chairman