Complainant

Respondent

Parties

Daniel  Nye

Interlink Ireland Ltd. Dpd

Representatives

 Self-represented but supported by M Kelly.

Emily Maverley IBEC

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-00051566-001

05/07/2022

The complainant and three witnesses for the respondent gave evidence under affirmation, one witness gave evidence under oath.  Cross examination was offered and availed of.

The complainant submitted that he was discriminated against by reason of disability, that the respondent failed to provide him with reasonable accommodation for that disability, that the respondent discriminated against him in relation to conditions of employment and that the respondent victimised him in accordance with the Act.

The complainant submitted that he has periodically visited a doctor to help with chest pains, and it appears that he has hypertension.  He submitted that he was required to wear a face covering in line with the mandate that was in force during the Covid 19 pandemic.  However, the mask covering his face caused him difficulties and he frequently needed to lower it.

The complainant submitted that he was working for the respondent in a temporary capacity in a very physical job in the warehouse.  He approached his supervisor without wearing a facemask and was told that he couldn’t work in the warehouse without a mask.  He was asked to bring in a doctors note and did so, but the note did not specifically mention a disability or the facemask.  He was told to go back to the doctor and was put on unpaid leave.  The complainant asked for reasonable accommodation and provided a doctor’s note which indicated that there was a level of discomfort for him when wearing a facemask.  He stated that he didn’t know who put him on unpaid leave.  He was subsequently let go as he was still working through his probationary period.

In evidence the complainant confirmed that he had approached his supervisor without wearing a face covering.  He was not sure of the date that this took place.  He confirmed that he had made no reference to any medical issues in this pre-employment medical questionnaire and that he has not received a diagnosis from a medical professional.  He stated that employees were required to wear face coverings.  He noted that his doctor was reluctant to give him a medical certificate regarding the wearing of face coverings.

The witness stated that the respondent company persisted with the use of face coverings after the national mandate was dropped.  He stated that there was a blanket policy in work.  He stated that he obtained a sick certificate from his doctor, but it referred to face masks not face coverings.  He stated to his employer that he was willing to wear a facemask under duress and was then asked to attend an occupational health specialist.  He mentioned to the specialist that he suffered from intermittent chest pain.

The witness stated that at this stage he was still on unpaid leave.  He stated that he received a phone call dismissing him and was promised a face-to-face meeting.  He stated that this never happened.  He appealed the termination decision and could not recall if he was allowed to have representation.  He noted that he couldn’t remember any dates.

It was suggested that the Cahill v Minister for Education judgement (2017, IESC 29, para 73) was relevant here in that the complainant was entitled to a right of bodily integrity and to work without danger or victimisation.  He also suggested that the issue of sanitising equipment after work was never discussed.

Under cross examination he was asked whether he noted any medical conditions in the pre-employment medical questionnaire and confirmed that he didn’t.  It was put to him that his role required physical exertion and that he had no problems with that aspect.  He stated that his condition was not to do with physical exertion but was to do with wearing a face covering.

The respondent refuted the allegations that it discriminated against the complainant.  It submitted that it was never on notice of a disability on the part of the complainant.  It was noted that the complainant did not disclose any history of chest pains or other illness in the per-employment medical questionnaire he completed.

The respondent submitted that when the complainant raised the issue of previously having chest pains, he was referred to an occupational health specialist who suggested against the use of face coverings.  As these were necessary for his role at that time, his employment was terminated.  The complainant was offered and availed of the opportunity to appeal the decision.  The respondent submitted that the complainant has acknowledged that he has no medical diagnosis, noting that it had a duty of care to its staff and that was why the retained a face covering requirement.  It was noted that although the complainant acknowledged at the hearing that he was happy to wear a mask, this was not borne out by the occupational health report.

The respondent submitted that the burden of proof for showing that he suffered discrimination rests on the complainant, but he has not demonstrated that he had a disability.  Accordingly, everything after that should fail.

Oral Evidence:

The first witness for the respondent was the Health & Safety Officer who outlined the impact that the Covid 19 pandemic had upon business.  She outlined the social distancing and other measures that were required by legislation.  She noted that exemptions needed a medical cert and that a small number of employees work face shields.  She kept a risk assessment on logs of covid transmission.  She noted that communal areas such as the warehouse presented a higher risk.  She noted that when she became aware of the complainant’s issue, community transmission was still quite high.

She stated that the complainant was informed that he would have to wear a face mask, but he chose not to and went home.  He subsequently submitted a medical cert which referred to other matters that required a referral to an occupational health specialist.  The occupational health report noted that a further exam was needed but that the complainant should be placed on light duties.  She stated that no light duties were available as they required the wearing of a mask and a distance of 2m and he was placed on a period of unpaid leave.  She stated that certain light duties existed but only for highly skilled employees.  This was in line with the Health, Safety and Work Act in operation at that time.

Under cross examination she confirmed that there were only short periods of time when the communal areas did not have staff present and numbers depended upon the levels of freight in the warehouse at any given time.  She also noted that there were tow bins for mask disposal at entry and exit points.

The second witness for the respondent was the People Operations Manager of.  She noted that the role of the warehouse operatives was very physical and was undertaken on a shift basis. The mask mandate applied to all employees. This was notified to all staff at the end of December.  She noted that the complainant indicated at the start of March that he couldn’t wear a mask.  She informed him that he had to go to a doctor. Two days later she spoke to him by phone, and he informed her that he had an undiagnosed respiratory issue.  This was not mentioned in his pre-employment medical questionnaire.  He indicated to the witness that his face puffed up and got spotty from wearing a mask.  He indicated that he was willing to compromise but did not feel that he was obliged to wear a mask.

He returned to work after several weeks with an updated cert and noted that he had no choice but to come to work even if it caused him chest pain and discomfort.  She stated that the respondent had no choice but to send him for an assessment by an occupational specialist.  Ultimately that resulted in a requirement to put the complainant on light duties. 

The witness stated that she discussed the matter with the complaint and noted that they had no light duties roles at present and the requirement to wear a mask would still be in place.  She noted that she had no involvement in the process after issuing his letter of termination (including his right to appeal), the Medmark and risk assessment documentation.

Under cross examination she confirmed that the risk assessment was for the complainant specifically.  She confirmed that he was entitled to claim expenses but had not claimed any.  Under redirect, she confirmed receipt of the report on 28 March.

The third witness for the respondent was the Deputy Night Manager who indicated that she became aware of the issue with a face mask on March 2, 2022

The last witness for the respondent was the Chief Financial Officer who had a role in considering the appeal of the termination.  He confirmed the complainant’s right of representation by a work colleague or union representative.  He opened the appeal by introducing everyone.  He noted that there were strict protocols in place during the Covid 19 pandemic.  He upheld the decision to dismiss the complainant but gave him the opportunity to reapply for his role when mask wearing was no longer an issue.  No cross examination was availed of.

The complainant submitted that his doctor was happy with the duties he was undertaking but noted that the face covering was the only issue.  The complainant indicated that he was happy wearing it around others.  He submitted that he was told to get an exemption and when he did, he was fired.  The complainant submitted that he was told that this course of action was unavoidable but in his opinion it was avoidable.

The respondent refuted all the allegations, noting that the complainant was not treated differently on the basis of a disability.  It was noted that the burden of proof rested upon the complainant to establish the existence of a disability and that he was not provided with reasonable accommodations.  It was submitted that the complainant acknowledged that he has no medical diagnosis relating to a disability.  The respondent submitted that it had a duty of care to both the complainant and to other staff.  The respondent acknowledged that the complainant indicated that he was happy to wear a mask, but this was not supported by the occupational health report.

Section 85A of the Employment Equality Act deals with the burden of proof and states as follows:

85A.—(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 Act provides an interpretation of disability and indicates the following:

“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, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant confirmed that he had no diagnosis of any health condition or disability.  Having considered the foregoing extracts from the Act, I am not satisfied that the complainant has demonstrated that he suffers from a disability, as outlined in the Act. 

Accordingly, I find that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to him. Therefore, I find that the burden of proof does not shift onto the respondent. I find that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – burden of proof – definition of disability – complainant not discriminated against.