Complainant

Respondent

Parties

Shereen  Gul

Affidea Diagnostics Ireland Limited

Representatives

Mr. Vincent Nolan, BL instructed by Powderly Solicitors.

Mr. G Quinn, BL, instructed by Mr. B Brick, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00062194-001

13/03/2024

The Complainant alleged that she was indirectly discriminated against by the Respondent on the grounds of race and religion in the provision of goods and services.  She alleged that these incidents occurred on 26 October, 2023 and on 4 November 2023.

The Respondents denied the allegations.

The Complainant provided a detailed submission which is summarised hereunder and which was consistent with the details submitted in her complaint form.

The Complainant submitted that she is a General Practitioner of Pakistani origin and as part of her day-to-day duties as a GP she is required to refer patients for X-rays and scans to the specialist companies that provide imaging services for patients and in particular to Affidea Dundrum.

She submitted that she had previously made a complaint about a radiographer in the Respondents clinic in Tallaght.  She advised that on 6 October 2023 she referred her mother (Mehr un Nisa) to Affidea, Dundrum for an MRI and a Dexa scan, and secured an appointment date of 4 November 2023.  On 13 October 2023 Ms. Gul received a phone call from Affidea, and she was notified that an appointment was available for the earlier date of 21 October 2023.  Ms. Gul was pleased to accept this earlier appointment, and Affidea accepted payments for this appointment over the telephone. 

On 21 October 2023 Ms. Gul arrived at Affidea, Dundrum and at reception was told that there was no appointment for that day for her mother.  Ms. Gul explained the situation to the receptionist who said that the head office in Poland likely made the phone call on 13 October 2023, but that the appointment was not scheduled.  Ms. Gul inquired if the receptionist could check with the Radiographer to see if her mother could be accommodated for an MRI, but, after speaking to the Radiographer, the receptionist confirmed that this request was refused.  Ms Gul was extremely upset about this mistake as she had taken time out to attend Affidea, Dundrum for this appointment, and was not being accommodated for the MRI and she sought to complain. However, due to work and other commitments she did not in fact make a complaint.

Some days later Ms. Gul received a letter dated 26 October 2023 from the Centre Operations Manager.  This letter was not marked private and confidential and was opened by Ms. Gul’s receptionist, much to her embarrassment.  The letter disputed that an appointment was ever scheduled for 21 October 2023 and alleged that Ms. Gul gave abuse to the staff of Affidea, Dundrum.  Ms. Gul was upset and extremely taken aback by this letter and the untrue accusation about what had transpired at Affidea Dundrum on 21 October 2023.

By e-mail dated 5 November 2023 Ms. Gul replied to Affidea setting out the events that actually occurred and categorically disputing the claim that she in any way “gave abuse” to the staff at Affidea, Dundrum.

On 4 November 2023, Ms. Gul and the Complainant attended at Affidea, Dundrum for the scheduled appointment.  Ms. Gul noticed that many staff members had gathered at reception as if in anticipation of their arrival.  She submitted that this was designed to create an aura of intimidation, which was borne out by the events that then transpired.

The Complainant noted that, in her complaint form, she requested a copy of the CCTV footage of the events of the day but this request was never replied to or engaged with by Affidea.

When Ms. Gul approached reception and informed the receptionist that she had an appointment for her mother who is an elderly lady of Pakistani origin, she was handed a piece of paper and asked to write down her name, which she did. The receptionist said that her name “does not make sense” as no surname was disclosed, and said to Ms. Gul that she needed “a correct one”.

Ms. Gul advised the receptionist that the Complainants name was on the system already as she had multiple scans previously done in Affidea.

The receptionist again stated that the name “does not make sense” and Ms. Gull was asked to provide identification (on the basis that the receptionist did not believe that her mother had only one name – Mehr un Nisa).  Ms. Gul explained that her mother was from Pakistan and that in the past there was no surname under that tradition; during this interaction the receptionist spoke very loudly, thereby ensuring that the whole waiting room could hear her which was embarrassing and humiliating.  Ms. Gul was anxious to ensure that, despite this treatment, her elderly mother did not become stressed.

Ms. Gul called her son, who sent a copy of her mother’s passport picture to her, and this was then shown to the receptionist, who replied that she could not even put it on the system as it was “just a picture”.  The Complainant submitted that she had never previously been asked for identification, and none of the other patients in the waiting area were subject to this interrogation about their identification by the employees of Affidea.

The receptionist went on to ask if Mehr un Nisa could speak English, to which Ms. Gul replied that she could not.  The reception sought to question and challenge this, and said the following words; “How come, not even a word”. Ms. Gul informed the receptionist that her mother could manage yes/no but no more than that.

Ms. Gul wanted to pay for the scans and informed the receptionist that she had already paid €345 during the telephone conversation on 13 October 2023.  The receptionist stated that the balance was covered by “the HSE scheme” to which Ms. Gul replied that her mother was a visitor to the country and she did not want it covered by the HSE, and she was happy to discharge the payment. The receptionist indicated that she had no card machine, so she took Ms. Gul’s bank card and entered the details into the system.  Ms. Gul asked for a receipt, which was refused, and Ms. Gul was informed by the receptionist that she would do it  “when she was ready”.  Ms. Gul asked four more times for a receipt, and on each occasion was refused, and was ultimately told that it would be sent out to her.

After the consent forms were completed, Ms. Gul was informed that she could not accompany her mother for the imaging.  Ms. Gul asked that she be allowed to assist her mother to change in the changing room, and then to leave (as her elderly mother needed assistance), but this was refused, on the basis of infection control.  Ms. Gul agreed that this would be correct for the imaging itself, but requested that she only be allowed into the changing room to assist her mother, which was again refused.

As a consequence, Ms. Gul had, in full view of staff and other patients of Affidea, to remove her mother’s scarf (which she at all times wears in public) in the waiting area.  The Complainant submitted that this was humiliating and derogatory experience for both of them.

The Complainant submitted that an employee named Chester came to bring her mother into the imaging area; Ms. Gul said to him “I think that there is something more to the way I am being treated”; and he half nodded and collected the Complainant.

Whilst Ms. Gul was waiting in the reception area she noted that another elderly patient was allowed have a companion accompany her into the area for imaging and scanning.  Ms. Gul was told that this was for of “a different type of scan”.  Ms. Gul questioned this as she had been told she could not accompany her mother due to infection control and not due to the type of scan.  The staff member then went into the scanning area and brought back out the person who had accompanied the earlier patient.  Again, the Complainant submitted that the cctv footage would bear out her position.

The receptionist had taken Ms. Guls bank card and she was told to wait for the receipt. As Ms. Gul got no receipt her practice manager subsequently called Affidea and it was confirmed that no payment had yet been made; Ms. Gul then made the payment.  However, the Complainant submitted that it was clear that Affidea deliberately did not process the payment, perhaps out of a desire to subsequently accuse her of not having paid for the service.

The Complainant submitted that by letter dated 22 November 2023 her solicitors served notice of the claim against Affidea but there was no reply to this correspondence.  The Complainant completed the ES1 form dated 13 March 2024.  By letter dated 9 January 2024 and 13 March 2024 and the Complainant’s solicitors served the ESI Form on the Affidea entities.

The Complainant submitted that, it is important to note that Affidea never responded to the letters of claim or the Form ES1, such that the Complainant had no knowledge whatever of Affidea response to or position on the claims herein advanced under the 2000 Act.

Consequently, the Complainant submitted that this placed her in a situation where, over 18 months after the events, Affidea has not committed itself in any way to a response to the events the subject matter of these complaints.

The Complainant noted Section 21 of the 2000 Act which requires a Complainant, before seeking redress, to notify a Respondent in writing of the nature of the alleged prohibited discriminatory conduct, and of the intention to seek redress in respect of same. The Complainant unquestionably did so by her solicitor’s letter dated 22 November, 2023 and subsequent ES1 Forms.  The Complainant submitted that it is clear from a line of authority, such as Borsca v Bank of Ireland (ADJ 000 40452) that an intended Complainant is required to serve an ES1 Form “before seeking redress under the acts” and the Complainant has done so.

Consequently, the Complainant submitted that within (a) two-month period specified under section 21(2)(a) of the 2000 Actor or (b) any substitute period of 4- months permitted for reasonable cause under section 21(3)(a)(i) of the 2000 Act, or at all, made statutory notification of alleged prohibited discriminatory conduct.

Prohibited discrimination on race and religious grounds

The Complainant noted the import of section 38A of the act, that the Complainant in the first instance is required to establish facts upon which she can rely in asserting that the prohibited conduct had occurred (in this instance, discrimination on the grounds of race and religion). The Complainant noted the decision of the Labour Court in Southern Health Board V Mitchell [2001] ELR 1, the evidential burden imposed on claimants in similar cases as follows:-

“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 the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of equal treatment.”

The Complainant also cited the case of Melbury Developments Limited v Valpeters [2010] ELR 64, where the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be proven.”

The Complainant submitted that she had clearly and easily passed this evidential hurdle. On the day itself the Complainant had comparators at the reception of Affidea who were not treated in such a humiliating fashion, being challenged on their name, being required to produce ID, that ID being rejected, being required to remove a headscarf in a public reception and being separated from each other.

The Complainant noted the case of Hallinan v Moy Valley Resources (DEC- 2008-25) where the Equality Officer in interpreting the obligation under section 38A stated that a Complainant must satisfy 3 elements of a test, namely;

a.       “ that they are covered by the relevant discriminatory ground which must be common case

b.       that they have been subject to specific treatment again which cannot really be in controversy; and

c.       That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated. Again, this cannot realistically be controverted.”

The Complainant submitted that she had clearly established a prima facie case of discrimination properly based on facts.  In such circumstances she submitted that the burden of proof falls to Affidea to rebut the presumption of discrimination, which she submitted it cannot do.    The Complainant noted again the failure of the Respondent to provide any response to the ES1 Form leaving the Complainant with no response on the factual background or the allegations of prohibited discriminatory conduct.  As a consequence, the Complainant submitted that it is to be assumed that the conduct is admitted.

The Complainant submitted that the behaviour and actions of the servants/agents of Affidea on 4 November 2023 were unlawful discrimination against her and she sought redress in accordance with the provisions of the Act.

Representations at hearing

Mr. Nolan outlined that the Complainant’s mother was an elderly lady who normally resides in Pakistan and who, at the time of the issues giving rise to the instant case was visiting her daughter, Ms. Gul (the Complainant).  He stated that the key event in relation to this complaint occurred on 4 November 2023 when the Complainant attended with her mother for an appointment at the Affidea Diagnostic Clinic in Dundrum.  During the course of that visit the Complainant and her mother were subject to appalling treatment which he submitted, fell foul of the standards required as outlined in the Equal Status Act 2000.

Mr. Nolan advised that the Complainant was treated differently and not in accordance with the Respondents own charter.  On the day the Complainant was greeted by 6 members of staff at reception.  He stated that the Complainant and her mother felt there was an aura of intimidation faced with the number of staff present as they arrived.

As the Complainant’s mother had little or no English, the Complainant, who was also the referring physician, sought to register Mehr un Nisa for her appointment.   When she provided her mother’s name this was challenged by a person named “Karen”.  Mr. Nolan advised the hearing that in the old Pakistan tradition there is no first name used and so the Complainant’s mother is known as Mehr Un Nisa.  He stated that records show that the Complainant’s mother had previously been registered with the Respondent but, despite this, and the clarifications provided by Ms. Gul, the receptionist stated “that doesn’t make sense” and interrogated Ms. Gul for identification for her mother.

Mr. Nolan outlined that Ms. Gul contacted her son and asked that he send her a copy of her mother’s passport and again the efforts to clarify her mother’s name were dismissed.  He stated that eventually the appointment was processed and Ms. Gul asked that she accompany her mother into the changing area to assist her with undressing/dressing as required.  Mr. Nolan noted that the Respondent referred to Ms. Gul asking to be allowed to enter the imaging area but clarified that Ms. Gul was clear that she asked to accompany her mother into the changing area.

Mr. Nolan advised that the Complainant’s mother always wears a headscarf in public due to religious reasons and that for those reasons her scarf should not be off in the presence of unknown men.  He further advised that while the Respondent position was that Mehr un Nisa was told to take the scarf off in the changing area, in reality Ms. Gul had no option but to assist her to take off the scarf in reception as she needed help.  He also confirmed that the Complainant’s mother then had to enter the changing and imaging area and to change the remainder of her attire on her own.

Mr. Nolan outlined that while Ms. Gul was waiting in reception she noticed that another woman was accompanied by her daughter into the changing room and she queried this with the receptionist.  The receptionist then went into the changing area and brought the person back out to reception.  Mr. Nolan submitted that these actions breached the principle of equal treatment.

Mr. Nolan stated that as far as Dr. Gul could ascertain there was cctv at reception and he noted that the photograph on the website shows a cctv camera in the corner.  He stated that an express request was sent to Affidea on 22 November, within the timeline he would have expected the footage to be retained.  He stated that the Respondent never replied to that request and never responded to the ES1 form, that in fact, there was no response whatsoever, until the first day of hearing in the WRC despite several correspondences from and on behalf of the Complainant and her mother.

He stated that, at a minimum, the footage would show the demeanour of the receptionist, the number of staff at reception and the incident relating to the scarf.  He stated that it was also possible that the footage would cover the other patient being allowed to have someone to assist her in the changing area.

Witness evidence – the Complainant

Ms. Gul confirmed that she was a GP with a practice in Saggart, that she was originally from Pakistan, that she was Muslim and that she had been living in Ireland for 20 years.  She advised that she generally refers patients to the Tallaght Clinic but that she had referred her mother to the Dundrum Clinic as it was nearer her home and she advised that since circa 2017 she had started using Affidea services for diagnostics for visiting family members.

She stated that in the times when she had previously visited with her parents, she had become familiar with the layout and the procedures for checking in patients.  She stated that the first floor of the building was the entrance to Affidea, that there was security outside the main doors and that there was a C-shaped reception desk opposite which was a waiting area. 

She stated that there was usually 1 or 2 staff at reception, that they hand over a piece of paper upon which to write the patient’s name, they check the system and confirm the appointment.  She stated that sometimes payment had been requested in advance and on other occasions she paid on the day, depending on the type of scan. She stated that the patient is normally given a safety sheet to complete in the waiting area and return.  Once completed, the practice is for the Radiographer to come and take the patient for the scan and she stated that, in the past, she had always been allowed to enter that area with her mother.

Ms. Gul stated that after the reception area there are double doors leading to a corridor and changing rooms are located on the right-hand side. She advised that there is a further corridor before the imaging room.  She stated that when she attended with her elderly parents in the past, 90% of the time she went into the changing room and helped them to change clothes and they were then taken by the technician to the imaging area for scan, while she waited in the changing room and on their return, she would again assist them.

She stated that, as a doctor, she was well aware, not to enter the imaging area.  She stated that on 2 previous occasions she had actually entered the imaging area in the past, once in 2017 when her father panicked while in the machine and again in 2019, when her mother was not able to understand instructions regarding positioning required for a scan.

In relation to the paragraph 1.17 of the Respondent submission, Ms. Gul advised that she agreed with the provisions set out therein but she stated that she had never asked to go to the imaging area and that she had only ever asked to go to the changing area.

Ms. Gul gave evidence that her mother comes from a Northern Pakistani village, that this is a tribal area and as such people from the area are very close to their culture and religion.  She gave evidence that according to their religion covering of the body is extremely important.  She confirmed that in their culture a forename and a surname is not used, and that only one name identifies individuals.  She confirmed that her mother was only known as Mehr un Nisa.  Ms. Gul acknowledged that when a referral is sent, the system requires a forename and a surname once the individual attends for appointment.  She stated in the past her mother had been identified on the system as Mrs. Mehr un Nisa or alternatively Mehrunnisa Mehr un Nisa.

Ms. Gul confirmed that on 6 October 2023 she sent an imaging request to the Respondent for an MRI and MRA for her mother and that she also separately sought a dexa scan on the same day.  On 9 October she received an email with a link to an appointment for 4 November 2023 but on 13 October she received a call from Affidea advising that a cancellation had resulted in an available appointment for 21 October if she wished to avail of same.  Ms. Gul checked with the caller if they would be able to facilitate the Dexa scan on that date, together with the MRI and this was confirmed.  Ms. Gul made payment of €345 over the phone, having accepted the new appointment.  She did not have the name of the person who called.

Ms. Gul gave evidence that on Saturday 21 October she arrived at Affidea 15 minutes before the scheduled time for the appointment.  She stated that the Complainant is a strong person but that she suffers with a number of debilitating medical conditions and she suffers from anxiety.  She stated that it wasn’t a particularly busy day and that she went to the first available receptionist.  She stated that she learned at the end of the interaction that the receptionists name was Sarah.  Ms. Gul advised that she was given a piece of paper and asked to note the patient details.  She stated that the Receptionist then checked the screen and advised that there was no appointment scheduled for that day but there was an appointment scheduled for 4 November.

Ms. Gul confirmed that she explained to the Receptionist about the phone call cancelling that appointment.  She stated that the Receptionist responded by suggesting that the call was most probably made from the head office in Holland but had not been amended on the system and hence there was no appointment.  Ms. Gul advised that she asked the Receptionist to check if the Radiographer could facilitate the scans on the day, given that it was the Respondent error and she informed the Receptionist that if it was an appointment for herself, she would not mind but that, given her mother’s age it would be difficult to explain to her why there was no appointment.

Ms. Gul stated that Sarah behaved normally and that she didn’t notice anything out of the ordinary.  She advised that when requested she went in to the Radiographer and returned very quickly to advise that the scans would take approximately two hours and could not be done on the day. Ms. Gul advised that she asked for the name of the Radiographer but the Receptionist would not give the name.  Ms. Gul confirmed that she asked 3 or 4 times, that she wasn’t rude but that she was very direct.  She stated that in “no way was I giving out to her" and she advised that she used words like “please can you assist me.” She confirmed that she was “Absolutely not abusive”.  Ms. Gul advised that, before she left, she did ask for the Receptionists name and the relevant email to send in a complaint but due to pressure of work she never made that complaint.

Ms. Gul advised that she received a letter dated 26 October 2023 at her work address which was opened by her receptionist as it was not marked private and confidential. She stated that the letter advised her that the appointment for 21 October was never scheduled.  The letter accused her of being abusive to the Receptionist and also stated that another client had seen the interaction between her and the receptionist.  Ms. Gul advised the hearing that she had not observed anyone else there at the time of the interaction but had noticed a woman entering as they were leaving.  Ms. Gul stated that she believed that she had the right to question the staff member about the appointment and that she also had the right to have such a serious allegation put to her before conclusions were drawn.  She stated that she was very concerned about the correspondence and the false allegations contained therein and that she brought the correspondence to the attention of the practice manager.

Ms. Gul advised that on 2 November she received an automated call as a reminder of the appointment on 4 November and that she had never before received such a call. 

She stated that she arrived in advance of the 2.30 pm appointment with her mother who was wearing a coat and scarf (kameez and shalwar).  She gave evidence that there were 2 receptionists present and that she went to the first one and followed her directions to be checked in by the second receptionist.  She stated that there were a number of staff behind the second receptionist chatting casually, and she indicated that it was between 4 and 6 people.

Ms. Gul gave evidence that the following sequence of events occurred:

·         She advised the receptionist of her mother’s appointment

·         She was given a piece of paper and told to write her mother’s name

·         She wrote Mehr un Nisa’s name on the paper

·         The receptionist took the paper and said “Oh, what kind of name is that and what is the surname”

·         Ms. Gul explained that her mother was on the system as she had multiple scans before but the Receptionist replied that it doesn’t make sense if there’s no surname

·         Ms. Gul explained the background, that in her tradition two names are not used but the Receptionist repeated that “it doesn’t make sense”

·         The Receptionist then asked for ID but Ms. Gul and her mother did not have any with them

Ms. Gul stated that she had never had problems before, that while she was asked for the name she was never interrogated in this manner, and that the referral was always located on the system.  She stated that she was shocked at how loud the Receptionist was and that everyone in the waiting room could hear the details of the conversation.  She stated that her mother became anxious and she had to calm her down.  She confirmed that she phoned her son and asked him to take a photo of the Complainant’s passport and send it to her.  She stated that while she was on the phone she noted some of the staff were laughing.

Ms Gul gave further evidence that she showed the Receptionist the picture on her phone

The Receptionist didn’t even take the phone but said “it’s just a picture… I can’t put it on the system.”  Ms. Gul noted that this was again said in a very loud voice and that the area was getting busy and everyone could hear what was happening.  Ms. Gul advised that the Receptionist then questioned her in relation to the Complainant’s command of English asking “does your Mom know any English.  Ms. Gul advised the Receptionist that her mother had just a few words like yes and no, to which the Receptionist responded “how come she has no English”.    Ms. Gul stated that she didn’t know how to react and she wondered why she had been redirected to the second receptionist when other patients were being processed by the first receptionist.

Ms. Gul advised that she informed the Receptionist that she wished to pay for the balance of the scans and that she had already paid an amount per phone.  The Receptionist advised that the balance would be covered by the HSE and again this was said very loudly.  Ms. Gul stated that she advised the Receptionist that her mother was a visitor to the country and that she was happy to pay the balance.  The Receptionist advised that she had no card machine and that she would have to take the payment manually and that she would give her a receipt in a while.

Ms. Gul was then given the safety questionnaire to complete and she and her mother left the reception area and went to the waiting area to complete the form.  She stated that when she returned with the form, she again asked the receptionist for the receipt and the Receptionist replied that when it was ready she would give it to her.

Ms. Gul gave evidence that the questionnaire was given to the Radiographer (Chester)

who had approached and wanted to take her mother for her scans.  She stated that he was at reception and he approached them as they were coming from the waiting area.  She stated that he approached her mother “nicely and kindly”.  Ms. Gul asked if she could come with her mother to help her change but he said that was not allowed.  Ms. Gul stated that she then went to the receptionist and explained how she had been allowed assist in the past but she was again refused.

Ms. Gul stated that she approached Chester and explained again about the assistance her mother needed and advised that she would come back out immediately but he advised that it was part of the infection control guidelines that she could not enter.  Ms. Gul stated that she could not see why she was not allowed to help her mother as she had been allowed even in Covid times and she asked “so why not now”.  Ms. Gul confirmed that Chester was in no way rude so she expressed her belief that “something was going on”.

Ms. Gul gave evidence that her mother was getting stressed and upset and she couldn’t understand what was going on.  She stated that in the circumstances she had no option but to remove her scarf and coat in the public area so that she would manage the scans unsupported.  Ms. Gul stated that she had never seen her mother without her scarf in public other than in a private medical setting.  She stated that “it’s a matter of life and death in my country”.  She also stated that she advised her mother not to get stressed and to just go in and that Chester aided her in nicely with his hand to her back.  She confirmed that she did not think there was anything inappropriate in Chester placing his hand at her back, it was merely done to assist.

Ms. Gul advised that she kept the coat and scarf with her in the waiting area and in total she was waiting for between 50 minutes to an hour.  She stated that during that time she sent a message within her work group updating them on what had happened.  She confirmed that during that time she returned to the Receptionist three more times to ask about the receipt and to bring to attention that she had observed 2 people being let in to the area with a family member as attendant.

She advised that the first person she saw was a male with a female attending who appeared to be over 60 years. She stated that those two people were white.  She advised that the second occasion she observed a female over age 60 enter the area with an attendant who appeared to be in their 50’s.  she stated that both these individuals were Irish.  Ms. Gul stated that when she observed the second person enter, she asked the Receptionist “how come those people were allowed enter” and she advised that the Receptionist replied “it’s a different type of scan”.   Ms. Gul stated that almost immediately the Receptionist ran through the double doors and brought the attendant out.

Ms. Gul advised that 4/5 people had left soon after the Complainant was taken in for scans and that there was only the Receptionist left.  She advised that she went again to her to ask for the receipt, the Receptionist gave her back her card and advised that “the receipt will be emailed out to you, Dr Gul”.  Ms. Gul advised that she asked the Receptionist how she knew her name, to which the Receptionist had replied that she guessed it.  Ms. Gul stated that she was surprised that the Receptionist had known all along who she was though she had not introduced herself.

Ms. Gul stated that the following Monday she was busy at work but she noted that no money had been deducted for the balance of payment so she asked her Practice Manager to follow up.  On 7 November she received a phone call from Med SERV and she was able to make the payment in full. She advised that Med SERV sent an email apologising for the confusion.  Ms. Gul stated that she was concerned that the Respondent was planning something against her and she thought that perhaps they intended to allege that she had walked away without paying.  She stated that she was greatly concerned, particularly as her mother’s visa was specific that she should not be a burden on the state while in Ireland.

Ms. Gul advised that her sister, who was also a GP, wrote to the Respondent and set out in some detail her concerns regarding the events described above but she got no response.  On 22 November her legal representative wrote again setting out details of concerns relating to this matter but again, no response was received and despite requesting copies of cctv footage none was provided.  She indicated that her representative had written again, just prior to the first day of hearing but again no response was forthcoming.

Ms. Gul stated that she had been in the country for 20 years and that she had been the subject of bullying and discrimination in the past but that she had always let it go.  However, she stated that on this occasion it was her mother who was treated badly and that she could not allow that to happen.  She stated that the case meant a lot to her as her mother had been really insulted.  She also stated that the issues had impacted her in terms of the impact on her patients due to her absence from clinic and she was obliged to carry the financial cost of providing locums in her absence.

Cross Examaniation – Ms. Gul

Mr. Quinn confirmed that it was not contested that an appointment was booked for 4 November that Ms. Gul was contacted in relation to a cancellation and had accepted an appointment for 21 October but that appointment was ultimately not booked for that date.

In response to his query Ms. Gul confirmed that when she arrived at the clinic, Sarah was the receptionist, and she advised that there was no appointment scheduled.  She stated that she made a reasonable request to ask if there was any chance that her mother’s scan could be facilitated on the day and she confirmed that Sarah agreed she would check it out.  Ms. Gul advised that Sarah did leave the reception area, went through the glass doors and made a phone call.  She stated that Sarah came back almost immediately and confirmed with Ms. Gul that 4 scans in all were required.  When this was verified, Sarah advised that “he is not going to be able to do those, he can’t fit in those scans.

Ms. Gul stated that she explained that the mix up was not her fault, that it was Affidea’s mistake and asked again if anything could be done.  When the response was negative, she asked for the name of the Radiographer but Sarah refused to give his name.  She stated that she was concerned that perhaps Sarah had not spoken to the Radiographer but she did not voice that concern at the time, she just asked for his name.  She stated that she was also concerned that this refusal might have been connected with another matter which was being addressed outside of these proceedings.  She stated that she accepted that the appointment had not been scheduled in error and asked if the Receptionist could please assist.  She stated that when the Receptionist repeatedly said it was not possible, she asked for the Receptionist name and advised that she needed to make a complaint about what had transpired.

Mr. Quinn put it to Ms. Gul that Sarah would say that she screamed and shouted at her.  Ms. Gul stated that “not at all” she did not scream or shout and she was surprised if someone viewed questioning as being abusive.  She posed the question, “If I was screaming why did nobody come to her assistance.”  She added that from her background and upbringing she was taught that you don’t raise your voice in the presence of your parents and she reaffirmed that she did not raise her voice.  Ms. Gul confirmed that nothing further occurred on that day, however, she was clear in repeating her evidence that there was no one else in the waiting area to the best of her knowledge.  Mr. Quinn put it to her that she had qualified her answer and Ms. Gul clarified that she did not see anyone else in the reception or waiting area and she believed she wouldn’t have missed someone.

Ms. Gul confirmed that she then received an unsolicited letter of 26 October and that, in the intervening time she had not submitted her complaint due to her busy work schedule.  Mr. Quinn asked Ms. Gul what was her attitude to that letter.  Ms. Gul confirmed that from her perspective the Respondent had made an error with the appointment and after that had been explained to the Receptionist she had asked to be accommodated.  She stated that she was confused as to what part of that interaction was deemed to be abusive and she felt it was unusual to write to a GP who gives the Respondent lots of business.  She stated that it was her opinion that when she told Sarah she intended to make a complaint Sarah and/or the Respondent decided to get in first.  She stated that it seemed like Affidea certainly supported the staff member. She stated that the member of HR who wrote the letter reflected entirely Sarah’s version of events and drew conclusions based on that account alone.  Ms. Gul stated I’m a very straight person, I don’t shout or scream and I certainly didn’t abuse her.

Mr. Quinn asked Ms. Gul about the call received on 2 November in advance of the appointment scheduled for 4 November.  Ms. Gul confirmed that she did receive a call requiring her to confirm her attendance and she advised that she had attended in relation to multiple MRI’s before and had never received such a call.  She confirmed that she did not agree with the Respondent position that all patients were treated the same in this regard.  There was an exchange about when this system had been put in place but Ms. Gul said that she was not aware of such a system from her practice and she believed this was done in order to confirm that she was still coming for the appointment so that the Respondent could arrange everything for 4 November.

Mr. Quinn put it to Ms. Gul that this was simply a figment of her imagination.  Ms. Gul responded that after 4 November and when she had the opportunity to reflect on what happened she formed the view that perhaps this was something that had been contrived.

Ms. Gul confirmed that when she attended the appointment on 4 November with her mother, there were many staff at reception when they arrived and that it seemed designed to create an aura of intimidation.  She stated that unusually, she was redirected from the first Receptionist to the second Receptionist and that while she was dealing with the second receptionist there were 4 or 5 people standing directly behind the Receptionist witnessing the entire interaction.  She clarified that they could see and hear everything that transpired and that it felt intimidatory.

Ms. Gul restated her evidence about the interaction with the Receptionist in relation to her mother’s name, the statement that the name “didn’t make sense”, the information that the HSE would cover the balance of the cost of the scans and the request to provide ID.  She stated that in the context that there were so many staff free, just standing around listening to what was being said for circa 20 minutes could only be described as intimidatory.  She stated that Chester was one of the people going in and out, while others were simply standing around.  She stated that she felt she was being watched as each and every question was put to her, that they were all watching and that she could even see when she phoned her son that they were laughing at her.

Mr. Quinn asked why she believed the staff were laughing at her.  Ms. Gul responded that she agreed they could be laughing at something else but they should not have been there listening to confidential information and she took it that they were looking at her and laughing.

Mr. Quinn referred to Ms. Guls earlier evidence that Ms. Fitzpatrick had asked “How come she doesn’t have a surname” and asked if Ms. Gul accepted that the Receptionist needed to be precise about who’s standing in front of her and needed to properly identify the patient.  Ms. Gul accepted that the patient needed to be properly identified.

Mr. Quinn referred to the spelling of her mother’s name and drew attention to the variances in spelling between the WRC complaint form, her mother’s passport and the information on the Affidea system from previous appointments.  He also noted variances in relation to her mother’s date of birth.  Ms. Gul confirmed that she accepted that there had been errors but she gave evidence that from 2022 all information was correct.  She stated that there were spelling mistakes in relation to her mother’s name.

Mr. Quinn reminded Ms. Gul that her mother’s name was wrong on her own complaint form and that in all the circumstances was it not fine for Ms. Fitzpatrick to take some care about the correct name.  Ms. Gul replied that it was perfectly fine if she had asked for the correct spelling, but she said that she didn’t do that, instead she stated loudly that the “name doesn’t make sense” and she didn’t even look at the ID when a copy was provided.  She confirmed that ultimately the scans took place because the issue was resolved as her mother was already on the system.

Mr. Quinn asked then where was the discrimination when the issue was resolved and the scans took place.  Ms. Gul stated that the discrimination was in the way she was spoken to, the way her mother’s name was highlighted, the way it was loudly stated that the balance of payment would be covered by HSE, that she was not allowed to enter the changing area to assist her mother while others were allowed to do so, and ultimately the necessity to remove her headscarf in a public area arising from her being blocked from entering the changing area.

Ms. Gul confirmed that when an electronic referral is sent on the system a file is created and an appointment issued.  In these circumstances the patient’s name is already in the system.  She stated that the Receptionist didn’t seek to confirm the spelling of the name that she had a problem with race and that was why she raised such an issue about the name.

Ms. Gul accepted the proposition put to her by Mr. Quinn that procedures had been changed post Covid and that she could not go into the scanning area.  Mr. Quinn stated that Ms. Gul made much of the removal of the scarf and coat in relation to the Islamic beliefs and yet she had taken a general affirmation.  He suggested that this be given some weight.

He noted that Mehr un Nisa’s evidence had been that a male member of staff had pulled the headscarf down.  Ms. Gul stated that the day of the scans and the first day of hearing had been very tiring for her mother and that she had struggled to fully understand and make herself understood as there were differences in the dialects used by the interpreter and her mother.  Mr. Quinn pointed out that Mehr un Nisa had made a gesture as to who had taken down the headscarf.  Ms. Gul replied that she was in no position to speak on behalf of her mother and that she could not provide clarification on her behalf.  She stated that she was clear that she had taken the scarf and the coat off in the waiting area before her mother went into the changing area, as she needed to have them removed for the scan.  She stated that this was necessary as she was not allowed to go into the changing area to assist her mother.

In relation to the question of pushing, Ms. Gul stated that what she observed was that Chester put a “guiding hand” to her mother’s back and that he did not push her.

Mr. Quinn asked Ms. Gul why she took the scarf off in reception and she replied that everything was happening so fast, it was brining stress on her and she was anxious not to bring stress on her mother.  She stated that her mother suffers from left arm and neck pain and she started panicking and getting stressed asking what was going on.  She was getting worried and asking questions about needing to go to the changing area and Ms. Gul stated that in the circumstances it was her instinct in a few seconds to try to help her and make things easy for her.

Mr. Quinn referred to the other patient that had been accompanied into the changing area and confirmed that this person was 93 years old.  He indicated that if the Complainant was to be accompanied for an X ray that the clinic should have received advance notice and he queried if Ms. Gul had given such notice.  Ms. Gul indicated that she was unaware of the need to make such a request or of a policy that required such an action.  She stated that the first time she heard it was when this question was put to her.  She stated that for the last several years she had made many requests to enter the changing area on the day with one or other of her elderly parents and had no problem and she confirmed that she was clear that two people had been allowed in.

Mr. Quinn put it to her that the submission only identified one person and Ms. Gul clarified that in the submission she referred to the person whom she had identified to the Receptionist.  Mr. Quinn stated that it should have been in the submission and Ms. Gul stated that her account of that could be ignored and that she was not familiar with the court process.

Following cross examination, the Complainant’s Representative redirected a number of questions to Ms. Gul and she responded giving the following evidence:

·         She never received any explanation or apology for the breakdown that occurred on 21 October, the only the communication received was the humiliating letter that was sent to the surgery.

·         She was never provided with a copy of any complaint made by the receptionist about her in relation to interactions on 21 October

·         Although it took the Respondent 5 days to investigate that complaint there was no acknowledgement that there was a breakdown in service on that day and that the opposite was the case, the position was that there was no appointment on that day.

·         That the Respondent now recognised that there was a breakdown in service provided on 21 October but still there had been no apology for that failure and there was never any contact made to find out her version of events.

·         In relation to the issue that arose on 4 November she believed that it could have easily been resolved as her mother’s name was already in the system and it wouldn’t have been difficult to check out as it is an unusual name.  Instead, the receptionist did not appear to check the spelling but instead said “how come there is no surname”.

Witness evidence – Mehr un Nisa

Mehr un Nisa confirmed that she was a 75-year-old woman from Pakistan who was staying with her daughter, Ms. Gul at this time.  She confirmed that when in Ireland her daughter sometimes arranged for various medical examinations on a private basis.

She gave evidence that she and her daughter had previously attended Affidea Dundrum without incident in 2019.  She also confirmed that she is referred to as Mehr Un Nisa and that she is Muslim. 

She outlined the importance of the wearing of a headscarf in the Muslim faith and confirmed that it is worn as part of daily life on instruction from Allah.

Mehr un Nisa confirmed that she would never take off her headscarf in public and she stated that as a Muslim her husband would mind if she removed her scarf and particularly in front of the opposite sex.  She stated that it was acceptable to do so in her own house.

She gave evidence that she visited Afidea Dundrum on two occasions in 2023.  She stated that the first time was on 21 October, that there seemed to be some mix up in relation to the appointment, that she didn’t have an MRI on that day and that she went back home.  She confirmed that her daughter was not rude to staff on that day nor did she abuse staff in any way.  She stated that her daughter “tried to cool them down” and she was very clear that her daughter didn’t shout.

Mehr un Nisa confirmed that she again attended Affidea Dundrum on 4 November and that she went to the reception area to register for her appointment.  She gave evidence that she couldn’t remember exactly how many staff were present at reception but she thought it was about 5 individuals.  She advised that she had never had any difficulty in relation to her name in the past.  She confirmed that she didn’t understand what was being said but she had observed that the staff member was “speaking aggressively” to her daughter.  She stated that she did not understand what the problem was, that her name is Mehr Un Nisa and that Ms. Gul repeated her name again and again.  She confirmed that ultimately, her daughter was asked to get a copy of her passport.

She gave evidence that she was alone in the changing and imaging area as the staff would not let her daughter in and she noticed that other people were allowed to have someone accompany them. She also gave evidence that her scarf was taken off in the reception area and that there were other men present.  She stated that she became upset and started to cry and that a staff member pushed her. 

The Complainant stated that she had difficulty getting on the machine as she had knee surgery and that nobody gave her clear instructions about breathing while in the MRI.  She stated that at all times she did not say anything to staff. 

The Complainant advised the hearing that she did not have a good experience at the Affidea Clinic and that she felt that because she was a Muslim she was pushed and had her scarf removed on the second occasion.  She noted that the behaviour of staff towards other patients was “quite good” and she noticed that others were helped from the machine while she was not.  She stated that she felt this was because of her being a Muslim and because of her dress.

  She confirmed that she had been made aware of the Customer Charter and the commitment of the Respondent to treat everyone with dignity and respect and she confirmed that she was not treated with dignity and respect.  She confirmed that she was not treated with kindness or compassion and that the staff were “more like strict towards me”.  The Complainant also confirmed that she was not provided with an interpreter while she was in the changing/imaging areas and that she was not asked if she needed one.

Cross examination of the Complainant

Under cross examination the Complainant confirmed her date of birth as 1 September 1950 and again confirmed the correct spelling of her name as Mehr un Nisa.  The Respondent noted that the date of birth on the passport was 1 January 1950.

The Complainant confirmed that she attended the Affidea Clinic Dundrum on 21 October but that she did not have an MRI.  She confirmed that she was present and could see the interactions at reception the whole time.  She further confirmed that she did not see her daughter getting angry and that her daughter’s behaviour was good.

Mr. Quinn stated that the Respondent evidence was that the staff member was upset for 2 days because Ms. Gul was so aggressive and because of how she spoke to the receptionist on that day.  Mr. Quinn asked Mehr un Nisa if she saw anything at all in her daughter’s behaviour that could have caused that level of upset.  She replied that she was sick on that first day and that she was crying as she was sick, feeling tired and in pain.  She confirmed that she did see all the interaction between her daughter and the reception staff member as she was standing in the doorway when they were talking.  She stated that her daughter asked them “please, please” four times but that at no stage did she become aggressive.

Mr. Quinn put it to Mehr un Nisa that Ms. Mulville (the Receptionist) would give evidence that Ms. Gul had been aggressive to which she advised that she could not speak English but that she observed one of the nurses (lady in white shirt) speaking in a loud voice.  This person was identified as Ms. Fitzpatrick.  Mr. Quinn put it to her that Ms. Fitzpatrick would give evidence that she was not at reception, nor in the building on that day. 

Mr. Quinn put it to her that in all interactions between Ms. Mulville and Ms. Gul, it was Ms. Gul who was aggressive on that first day.  She replied that she wasn’t able to remember the people that were there.  Mr. Quinn put it to her that she could remember that her daughter had remained courteous at all times.  She responded that her daughter was upset for her.  And at the behest of Mr. Quinn she described Ms. Gul as talking to her saying don’t mind this, don’t get upset, we can have it another day.  She again confirmed that she never saw her daughter upset with the staff member.

In relation to the appointment of 4 November Mr. Quinn asked Mehr un Nisa if there was any confusion regarding that appointment.  The Complainant confirmed that there was not but that an issue arose in relation to her name.  Mr. Quinn asked her if she accepted that when someone is being scanned that person must be identified and she confirmed her acceptance. 

Mr. Quinn noted the Patient Identity Policy and noted that in the system Mehr un Nisa’s  date of birth was recorded as 3 March 1953.  Mehr un Nisa confirmed that this was not her correct date of birth.  Mr. Quinn also noted that there were two version of the spelling of her name in the system and that the name given on the day did not accord with either version and put it to the Complainant that this was why further information was required.

Mr. Quinn asked Mehr un Nisa if anyone asked her to take her scarf off in the reception area and she advised that “yes” they asked her to remove her scarf.  In response to Mr. Quinn she advised that people at reception asked her, she stated that she did not know the people there.  Mr. Quinn asked who removed the scarf and she advised that when she was being taken to the MRI there was a male who took it off and pushed her forward, telling her “quickly, quickly”.  The Complainant confirmed this evidence twice.

Mr. Quinn put it to Mehr un Nisa that Mr. Cruz (the Radiographer) would give evidence that when she came down for the MRI, she still had her scarf on, to which she replied that she did have her scarf on but that “they had removed it”.  Mr. Quinn sought clarity on which of the three rooms was the scarf removed and she responded that she had no scarf at the imaging room.  She stated that she would have preferred to have the scarf even in the imaging room but that they took it off.  Mr. Quinn again asked which room and she confirmed that they took it off at reception and pushed her onwards.  She confirmed, again, that it was already removed before she entered the changing room and that a man took her scarf off at reception.  She repeated that it was a male member of staff and that he was accompanied by a female staff member and they took her scarf off.

Mr. Quinn drew attention to the submission where it stated that Ms. Gul had taken her scarf off.  The Complainant responded that “it was them”.

Mr. Quinn asked Mehr un Nisa about her statement in relation to being pushed by a staff member and she responded “yes” and she was told to be quick and change clothes. 

Mehr un Nisa confirmed her evidence that when she went into the imaging area there were other people there getting images done at the same time and that there was another lady in the room with one of the patients (in the MRI room).  She stated that she had just entered the MRI room and that the other patient was almost finished.  Mr. Quinn asked how did she know that it was the daughter of the patient and not another member of staff.  The Complainant replied that she heard the person say “Mommy, give me your hand”.

Mr. Quinn noted that this had never been mentioned in the complaint form and asked why it had not been included. The Complainant replied that it was because she was aware of the fact that she (the patient) had assistance and that she (Mehr un Nisa) did not.  Mr. Quinn put it to her that it was out of concern that her evidence was not in alignment with other witnesses.  Mehr un Nisa stated that was not correct.  Mr. Quinn stated that the evidence aligned with Ms. Gul’s evidence but was not in the complaint form.

Mr. Quinn asked her why she did not make a complaint while in the imaging room and she replied because she was not aware she had to mention it.  Mr. Quinn stated “but you’re mentioning it now”, to which she replied that she was doing so because he was asking questions and she was answering them.

Mr. Quinn noted that when asked about the three rooms she had answered in a sequential way.  Mehr un Nisa stated that she said she was pushed because she was Muslim, that this was what she felt and that they didn’t like her dress.  Mr. Quinn noted that there was no reference to pushing or not liking her because she was Muslim in her complaint form.  He asked why these statements had not been included when they were so important, if not central to her complaint.  The Complainant stated that she did not understand that she had to include them.

Mr. Quinn asked her if she was met at reception before going to the changing/imaging area.  Mehr un Nisa confirmed that she was met by a man who was accompanied by a female staff member.  He asked if anyone went to the changing room with her and she confirmed that one of them had accompanied her but that she did not remember who.  In response to a request for clarification Mehr un Nisa confirmed that the male member of staff pointed her towards the door of the changing room, pushed her and asked her to go in and change her clothes.

Mr. Quinn asked if this was a second push.  Mehr un Nisa replied that he took her to the door, asked her to go quickly into the room, that there was another lady coming out and she was pushed into the changing room.  She confirmed that she didn’t mention this in her complaint form as she just remembered it while telling him what had happened. She confirmed that she did not tell her daughter about that push or the push that happened at reception and she confirmed that her daughter wasn’t there (in reception) at the time of the push.  She advised that her daughter was “a bit far from there”.

Mr. Quinn put it to her that Ms. Gul had removed her scarf.  Mehr un Nisa replied that they (the staff) removed her scarf, that it was a bit tight around her neck and that her daughter had loosened it but she was clear that “they” removed it completely.

Concluding Remarks on behalf of the Complainant

In his closing remarks Mr. Nolan stated that this was a clear case of discrimination on the grounds of ethnicity and religion and that there were two witnesses to the events, Ms. Gul and Mehr un Nisa.  He stated that they were treated in a discriminatory manner on 4 November in Dundrum.  He stated that the factual conflicts arising from the evidence of those 2 witnesses were a matter to be resolved by the Adjudication Officer, but he stated that the fact that Mehr un Nisa was elderly, nervous and a reluctant witness should be taken into consideration.  He stated that it was accepted by the Complainant that her mother was not “pushed” during the course of the interaction at reception.  He also asked that consideration be given to the challenges with translation in the context of different dialects.

Mr. Nolan drew attention to the fact that, notwithstanding some difference in evidence, both the Complainant and Mehr un Nisa were clear that the scarf was removed while at reception.

Mr. Nolan drew attention to the behaviour of Ms. Fitzpatrick on the day in question and of Ms. Gul’s evidence that she was treated differently from the outset, she was sent by the first receptions to Ms. Fitzpatrick, she was challenged in relation to her mother’s name, she was asked for ID, that ID was refused in a loud and challenging manner.  Most important of all, Ms. Gul was wrongfully not allowed to enter the changing area to assist her aging mother.

Mr. Nolan stated that the Adjudication Officer should consider where the disagreement began on 21 st October and how it was evident that from the outset the Respondent was determined that they were going to treat Ms. Gul in a particular way on 4 November.  Mr. Nolan stated that it was a fact that the Complainant had brought what witness she could.  On the other hand, the Respondent had access to witnesses such as the patient, the cleaner and the Radiographer who were all allegedly present on 21 October but failed to produce those witnesses at hearing.  In addition, Mr. Cruz, whose name was raised in connection with the removal of the headscarf, was present at hearing but not called to give evidence by the Respondent and Mr. Nolan asked the Adjudication Officer to consider these matters.

Mr. Nolan stated that the Complainant was faced with an unfair situation in that prior to the hearings the Respondent had not provided any detail of their position on the complaints, and that, in fact, the Complainant was faced with “a wall of silence”.  Mr. Nolan also noted that it was deeply unfair that evidence that was due to be given by witnesses of the Respondent was not put to Ms. Gul while she was under cross examination and that therefore weight ought to be given to her evidence.

Mr. Nolan noted that the “policy” governing who might be allowed into the changing area was undocumented and evidence was heard that decisions were made on a “case by case” basis.  He stated that there appeared to be nothing in the policy that would have prevented Ms. Gul from attending and assisting her mother.  Equally he noted that the ID policy was not documented.  He stated that the Respondent patient charter talked about “dignity, fairness and equality” and he stated that the Respondent failed significantly to meet those standards on the day.

Mr. Nolan stated that Ms. Gul was uncontroverted in her evidence that others were processed quickly and differently and that Mehr un Nisa would have had no reason to remove her scarf in the public area but for the fact that staff of the Respondent decided to make a point and not allow Ms. Gul into the changing area to support her elderly mother.  He noted that there was clear evidence that others were allowed in.

Mr. Nolan stated that the Complainant’s case was a clear case of indirect discrimination and he asked that the Adjudication Officer so find.

The Respondent noted the Complainant references to preservation of CCTV footage and confirmed that there was no CCTV present at Affidea Dundrum reception area on the dates in question.

The Respondent submitted that the following sequence of events occurred:

·         The Complainant referred her mother for various scans to be performed by the Respondent.

·         Ms. Gul asserted that she was contacted by phone on 13 October 2023 by an agent of the Respondent advising that an earlier appointment date was available for a scan.

·         On 21st October 2023, Ms. Gul and her mother arrived at the Respondent premises for the rescheduled appointment. Ms. Gul approached the reception desk in the Respondent premises to book in. Ms. Gul provided the name of her mother but when the Receptionist looked in the system, she discovered there was no appointment, and the actual appointment was for the 4th November 2023 for multiple scans.

·         The Receptionist of the Respondent apologised and advised unfortunately the appointment was for two weeks for all scans. Ms. Gul became incensed by the booking error and demanded that her mother be facilitated with her scans. The Receptionist contacted the Radiographer on duty to ascertain if there was availability. It was communicated to Ms. Gul that unfortunately the scans could not be facilitated as MRI was fully booked up. The Respondent submitted that at this point Ms. Gul began shouting and stating she refers patients to Affidea all the time and that the Respondent should be accommodating her.

·         Ms. Gul demanded to know the Receptionist’s name, the name of the Radiographer whom the Receptionist was speaking to and the contact for head office to make a complaint. The Respondent’s Receptionist reported the incident internally due to the nature of Ms. Gul’s actions.

·         The Respondent’s Centre Operations Manager wrote to Ms. Gul on the 26th October 2024, confirming the date of her mother’s scans as the 4th November. The frustration of Ms. Gul was noted in the correspondence, but it was further asserted that Ms. Gul’s reaction at reception was not acceptable. It was set out that Ms. Gul’s upset and disappointment was understood however the Respondent could not accept abuse from Ms. Gul towards staff.

 The Respondent noted that Ms. Gul’s alleged embarrassment that her receptionist received correspondence from Affidea by email dated 26 October 2023 and submitted that this was another example of the disingenuous manner in which Ms. Gul was mounting her claim. The Respondent referred to an email at Appendix 11 of the Complainant’s submission. The Respondent noted that the email was issued from Orla, whom it was assumed was a member of staff at the Slade Castle Clinic to David Powderly and Linda Wright (legal advisors) entitled “brief update Dr Shereen”. The email provided an update on the interaction with Affidea and the Complainant in relation to her grievance.

The Respondent noted that at Paragraph 18 of the Complainants’ submissions, it was stated that Dr Gul replied to Affidea by email dated 5 November setting out the events that actually occurred. The Respondent further noted that upon review of the said email it was sent from Slade Castle family practice and referred to Ms. Gul in the third person. It stated “consulted with both doctors in the surgery, I have accessed detailed information in terms of sequence of events, and I am certain there was no such thing as abuse which you have used to defame our doctors and that poor elderly female patient who has issues with memory”. The email goes on to assert legal action against the individual employee of the Respondent and the Respondent. The Respondent submitted this email was quite remarkable in terms of its content. The Respondent noted that Ms. Gul was now asserting that she wrote this email despite it clearly being represented as being sent from the Slade Castle family practice and not from Ms. Gul. The Respondent requested that the email be considered carefully in the context of the other allegations made within the submission. The Respondent submitted that the email from Carmel Byrne at Appendix 9 of the Complainants submissions accurately reflects the events on the 21st October 2023, and that evidence would be called to adduce and substantiate this.

Ms. Gul and her mother attended on 4th November 2023 for three MRI scans and a Dexa Scan at Affidea Dundrum. In accordance with standard booking procedure, the Receptionist attempted to clarify identification details with Ms. Gul, in circumstances where it was confirmed that her mother did not speak English. Each point of clarification was met with resistance and questioning by Ms. Gul.

The Respondent entirely refuted the quoted references contained within paragraphs 20, 22, 23 and 24 as being made by the Receptionist on the 4th November 2023 and advised that the Receptionist would be present at hearing to give evidence to that effect. The Respondent submitted that it conformed with the Patient ID policy, and appended a copy of same.

The Respondent submitted that the Complainant’s mother was at all times very pleasant and gracious and at no point raised any complaint or concern and she said a very gracious thank you as she left the clinic after her scans were performed

In response to paragraph 27 of the Complainant’s submission, the Respondent’s advised that its’ staff would submit that Ms. Gul demanded to be given access to not only the changing area but also the imaging area and submitted that, in accordance with patient safety protocols this is simply not permitted. The Respondent noted that it is imperative from a safety perspective that the Respondent has strict protocols and procedures on who is permitted in the Radiography area and the Respondent appended a copy of its protocol. The Respondent submitted that Ms. Gul was not happy that she could not attend the MRI and insisted on staying in reception even though it is a patient only area, as there is an adjoining visitor area.

The Respondent set out the following:

·         When the paperwork was completed by the Respondent’s staff the Complainant’s mother was brought down to Radiography by an aide of the Respondents.

·         In response to paragraph 28, the Respondent is very clear that under no circumstances did any staff member of the Respondent request, or direct that Ms. Gul remove her mother’s scarf in the reception area.

·         The conduct of Ms. Gul caused a breakdown in professional relations between the Respondent and Ms. Gul. The breakdown in relations was nothing to do with race or religion of Ms. Gul or her mother.

·         The Respondent noted that Ms. Gul was asserting that she and her mother were treated differently due to race and/or religion, without setting out any prima facie basis for same. The Respondent submitted that it was clear from the interactions referenced in the Submission and Appendices that Ms. Gul had a number of ongoing grievances against the Respondent. However, there was no evidence presented by the Complainant that the breakdown in relations had anything to do with race or religion.

·         The Complainant’s mother at all times had a very pleasant demeanour to the Respondent’s staff and was very thankful before, during and after the various scans were performed.

The Respondent submitted that it was aware of its duty toward its patients which included Dignity and Respect, as well as Equality and diversity. The Respondents Customer Care Charter was appended to the submission.

The Respondent denied the complaints in their entirety.

Preliminary Issues

The Respondent raised two preliminary issues as follows:

·         Irrelevant issues

·         Temporal Limits

Irrelevant Issues

The Respondent noted that Ms. Gul raised a number of issues that were not relevant to the instant complaint. As a preliminary objection, the combined submissions of the Complainants set out at paragraphs 6 to 12 (inclusive), detail in respect of defamation proceedings brought by Ms. Gul against Affidea, which proceedings were initiated on 19 January 2024 and were before the Circuit Court. The Respondent submitted that it was entirely inappropriate to particularise the substance of those proceedings in submissions to the Adjudicating Officer.  The Respondent further submitted that it appeared to be an attempt to run parallel claims upon the same facts.

The Respondent further noted that the Complainant had set out in submissions and within the appendices to the submissions, information and personal details of those individuals both in respect of the Respondent and its staff but also non-related third-party personal information, which is not appropriate. The Respondent asked the Adjudication Officer to address what facts properly come before this hearing, and to further ensure that the personal information of individuals both employees of the Respondent and third-party individuals is removed.

Temporal Limits

The Respondent submitted that the matters set out in paragraphs 6-12 inclusive of the Complainants’ submission were out of time and not relevant to the proceedings as they fell outside the 6-month window. The complaints are out of time save for those dated from 26 October 2023 onwards.

The Respondent noted that on their website the IHREC provides clear direction on how to progress a complaint for a breach of the Equal Status Act, 2000. Under the section entitled “What Are The Time Limits For Taking A Case”, the web page expressly states: “There are a number of important deadlines to consider when planning to bring a complaint under the ESA. Under the ESA, you must tell a respondent that you intend to make a complaint about them to the WRC. You cannot take a case to the WRC under the ESA until you have contacted the Respondent and given them time to reply. You have two months from the last date of discrimination to tell the Respondent that you intend to make a complaint to the WRC. You should do this using a Form ES1 (See “Do I need to tell the person or company that I am taking a case against them?” below) In exceptional circumstances, the WRC may extend this period of two months in which to notify a potential respondent by another two months. This brings the total to four months. The WRC may do this only in exceptional circumstances and where it believes it is fair and reasonable to do so. Learn more about the procedure to follow when applying for an extension of time. If you receive no reply after one month or you are dissatisfied with the response you receive, you may then bring the complaint to the WRC. You should submit this type of complaint using the WRC complaint form. You must submit the complaint within six months of when the alleged discrimination took place or, in the case of multiple incidents, the last occurrence of alleged discrimination. The WRC can extend the time in which to submit a complaint from six months to 12 months if it believes there is reasonable cause to do so, although the WRC very rarely exercises this power in practice.”

SUBSTANTIVE CLAIM/APPLICABLE LAW – EQUAL STATUS ACT, 2000

Burden Of Proof

The Respondent noted that Section 38A subsection (1) of the 2000 Act deals with the burden of proof and provides: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary."

The burden at the outset is on the Complainant to establish a prima facia case of discrimination by raising an inference of discrimination. To raise an inference, a complainant must prove the primary facts upon which they rely. Only at that point will the burden shift to the Respondent to objectively justify the discrimination or prove that there is no infringement of the principle of equal treatment

In assessing the facts of any case, the established “Mitchell" test arising out of the decision of the Labour Court in Mitchell v Southern Health Board [2001] 12 ELR 201 should be applied as follows:

 "(1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

(2) If the primary facts relied upon are proved, it is for the adjudication officer/court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

(3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent."

Application to Complainant

The Respondent submitted that strictly without prejudice to the above preliminary objections, the Complainant had failed to establish a prima facie case of discrimination. Ms. Gul had identified a break down in relations between her individually from a professional perspective and the Respondent. Ms. Gul in her communications with the Respondent continually threatened legal proceedings. Ms. Gul in her submissions confirmed her mind set prior to attending Affidea, and attending at the reception area, asserting that the Affidea staff were gathered at Reception awaiting her arrival. Further asserting that there was a delay in payment for the scans to bring about a scenario where Affidea could accuse Ms. Gul of non-payment.

The Respondent submitted that the Complainant had not demonstrated the Respondent acted in a discriminatory manner and that the Complainant was not treated differently or less favourably than any other patient in this regard.

The Respondent submitted that the Complainant could not satisfy the burden of proof as required by shifting the burden to the Respondent.

CONCLUSION

Without prejudice to the Preliminary Objections raised by the Respondent, the Respondent submitted that the Complainant had no claim in substance for discrimination on the grounds of race or religion as against the Respondent.

In conclusion, the Respondent denied the claim in its entirety and submitted that this claim must be dismissed.

Witness evidence – Ms. Sarah Mulville

Ms. Mulville confirmed that she was the Receptionist that met Ms. Gul and her mother on 21 October at the Affidea Clinic in Dundrum.  She gave evidence that when they arrived she checked for the appointment but there was no appointment on the system.  She advised that she rang down to the imaging area to check if the Complainant’s mother could be accommodated.  She stated that she remained at the desk while making that call as she was on her own.  She confirmed that neither of the Radiographers had capacity to do the scans required.

In response to a query from the Respondent representative she confirmed that she did not go through the glass door as there was no way she would have left the reception unattended.

Ms. Mulville gave evidence that she initially apologised that there was no appointment, went through the log in procedure and double checked if there was any availability to do the scans.  She advised that she said she was really sorry but that she could not fit the Complainant in and she explained that the Dexa Scan was not open that day.

Ms. Mulville stated that Ms. Gul said that she refers a lot of patients and that she should be fitted in.  She stated that the interaction lasted about 10/15 minutes.  She stated that after the Complainant and her mother left and the Radiographer came to reception she was “in floods of tears”.  She advised that the cleaning lady and another patient came to her when they saw her upset.

Ms. Mulville confirmed that she never said anything derogatory to Ms. Gul but that she kept apologising over and over.  She stated that she had offered to get the Radiographer but Ms. Gul refused the offer and stormed out.  She stated that she was polite all the time, that her eyes welled up during the interaction and she thought Ms. Gul might stop but “she kept going”.  Ms. Mulville stated that she had to go into the office once or twice.

Ms. Mulville stated that afterwards she told the Radiographer what had happened and filled up an incident form.  She stated that she was distraught, that this was the most distressing situation she had ever dealt with and that, even days later, when asked about the events of that day she started crying.

Cross examination of Ms. Mulville

Mr. Nolan asked Ms. Mulville if there was cctv in the clinic in Dundrum.  She replied that there is now but that there wasn’t at the time of this incident.  She sated that she thought it was installed in 2024 but that she wasn’t certain.

Mr. Nolan asked if there was a booking for the Complainant on 21 October and she confirmed that there was not.

Mr. Nolan stated that there was a fundamental unfairness in the handling of Ms. Mulville’s evidence in relation to remaining at the desk as this position was never put to Ms. Gul or her mother when they were being cross examined.

Mr. Nolan asked Ms. Mulville when Ms. Gul became upset and she replied not until the Radiographer couldn’t see the patient.

Mr. Nolan referred to the Respondent submission where it described Ms. Gul as becoming “incensed” and asked Ms. Mulville if that was a correct description.  Ms. Mulville stated that “it was so long ago” and that she didn’t think it could be said that she was incensed.

Mr. Nolan asked if the Complainant “flew into a rage over the booking error or after the Radiographer could not accommodate the scans.  Ms. Mulville said she couldn’t say, that she was anxious and upset at the time and that she didn’t know the names of the Radiographers.

Mr. Nolan put it to Ms. Mulville that Ms. Gul’s impression was that she went in behind to make the call to the Radiographer.  Ms. Mulville replied that she was in the third desk against the wall and that she did not leave reception.

Mr. Nolan asked Ms. Mulville if she had tried to resolve the issue and she replied that she had genuinely tried but given that there were 3 MRI’s and a Dexa scan required she knew that there wasn’t much chance of being able to assist.  She stated that she thought perhaps the Complainant and her mother had simply attended on the wrong day.

Mr. Nolan noted that the letter to Ms. Gul at Appendix 9 of the Respondent submission referred only to a patient coming to the assistance of Ms. Mulville and he noted that her evidence at hearing was that a patient and the cleaning lady had been present.  Ms. Mulville stated that both were referred to in the incident form that she completed.  Mr. Nolan stated that the incident form was not submitted in evidence and he noted that neither the patient nor the cleaning lady was present at the hearing as witnesses on behalf of the Respondent.  Ms. Mulville stated that the Respondent had all the documentation and that she had no role in deciding witnesses.

Witness evidence – Ms. Karen Fitzpatrick

Ms. Fitzpatrick confirmed that she was the Receptionist at the Affidea Clinic, Dundrum on 4 November 2023 when the Complainant and her mother attended for the appointment.   She stated that she could not say how many people were there but that Saturdays are generally busy.  She advised that there was no ultrasound open so not many patients.  She confirmed that the Complainant’s mother was scheduled for 3 MRI’s and one other scan.

In relation to the number of staff at reception Ms. Fitzpatrick stated that there are aides working with each MRI scanner and that the aides come up to collect patients.  She stated that 2 aides may have been there and that “Chester” may also have been there.  She stated that they were not standing there in a state of expectancy and that “nothing was done to intimidate Dr. Gul or her lovely mother”.  She stated that the Complainant’s mother was a “lovely lady”. 

Ms. Fitzpatrick stated that there were 2 receptionists present and that while she can’t remember exactly why the Complainant and her mother were directed to her, she said there was nothing unusual in this as the other person could be inputting patient information, answering emails, scheduling, typing etc.  She gave evidence that she asked Ms. Gul for the name of the patient as Ms. Gul had come to the desk while her mother sat down.  She stated that she could see that surname on the screen, that 4 tests were scheduled, correct spelling, a date of birth, address and correct referring GP, Dr. Gul.

Ms. Fitzpatrick confirmed that she had no difficulty finding the appointment that there was a surname and a title (Mrs) but no forename.

Ms. Fitzpatrick stated that she did not say that the name didn’t make sense that she said to Ms. Gul that she needed to check the spelling of her mother’s name and that when she couldn’t confirm she asked for ID.  She advised that Ms. Gul said she would ring her son and that when she showed the scanned copy on the phone she advised Ms. Gul that she couldn’t scan from the phone into the system.  Mr. Nolan objected to this evidence on the basis that this had never been put to Ms. Gul during cross examination. 

Ms. Fitzpatrick stated that she did not say “it doesn’t make sense” and that she said “I can’t scan a picture from a phone onto my system but I will put a note to say that I’ve seen it.”

Ms. Fitzpatrick confirmed that she had asked if the Complainant could speak English and that she did so because of the requirement to complete the safety questionnaire.

Cross examination – Ms. Fitzpatrick

Ms. Fitzpatrick confirmed that she knew the Complainant’s mothers name and the name of the referring doctor and that this information was on screen.  She was also aware from that record that the referring doctor was the daughter of the patient.

Ms. Fitzpatrick also confirmed that she did work with Ms. Mulville but that she worked on another roster. She confirmed that she knew about the incident between Ms. Mulville and Ms. Gul and she assumed that Ms. Mulville would have reported it but that she didn’t know for certain.

Mr. Nolan asked Ms. Fitzpatrick if there was any reason for staff “hanging around”.  She stated that on that day there was not but that there might be others around if they knew in advance that there was a “particularly rude and upsetting patient” attending.  Ms. Fitzpatrick was asked if she knew the Radiographer from another site that was the subject of separate issues with Ms. Gul.  She confirmed that she did not know him.  She stated that with over 100 patients a day attending “do you think we are sitting there waiting” for patients to come in.  Mr. Nolan stated “this wasn’t just any patient”, to which Ms. Fitzpatrick replied “I didn’t know who she was, this was her mother’s name on the list”… “I didn’t know who her daughter was.”

Mr. Nolan asked Ms. Fitzpatrick why she was smirking and she replied that she was “smirking at your position”.  Mr. Nolan stated you’re suggesting that Ms. Gul is right and you’re wrong.  Ms. Fitzpatrick replied that she had already explained.  Mr. Nolan advised her that he was entitled to challenge.

Mr. Nolan put it to Ms. Fitzpatrick that she had acted as she did, arising from the issues of 21 October and that she was in the wrong.  Ms. Fitzpatrick replied that she was not here to discuss what happened on 21 October.  She stated that there were other girls there that were gone about two years.

Mr. Nolan asked Ms. Fitzpatrick what was the first question she put to Ms. Gul and she advised that she asked for the patient’s name.  Mr. Nolan put it to Ms. Fitzpatrick that Ms. Gul stated that she was given a piece of paper and asked to write the name down.  Ms. Fitzpatrick said that was not true.

Mr. Nolan stated that Ms. Gul gave evidence to that effect and her evidence was not challenged.  Ms. Fitzpatrick replied that she “didn’t say it doesn’t make sense”.  Mr. Nolan stated that no it was as clear as day.  Ms. Fitzpatrick made no response.

Ms. Fitzpatrick then stated that she asked Ms. Gul if she could provide any form of ID.  Mr. Nolan noted that the Respondent ID policy does not mention the requirement to ask for ID.  Ms. Fitzpatrick stated that while it did not, staff were advised by management that they should do so.  She stated that this was because there had been a couple of issues with spelling of names and that it didn’t matter where someone was from, she was required to have the correct name on the system.

Mr. Nolan asked why there was suddenly a problem on this occasion when there hadn’t been before.  Ms. Fitzpatrick stated that she didn’t work in Tallaght and that she didn’t know the Complainants name had to be changed.  Mr. Nolan put it to Ms. Fitzpatrick that she simply decided to be awkward, to which she replied “No, I was just doing my job correctly”.

Mr. Nolan put it to Ms. Fitzpatrick that Ms. Gul observed staff “sniggering in the background” and he noted that she was “throwing your eyes up to heaven” at the comment.  Ms. Fitzpatrick replied that “we don’t run that kind of operation.”

Ms. Fitzpatrick advised that when Ms. Gul showed her the phone she confirmed that she could not scan the picture but would put a note on the system.  She advised that she did not hold the phone but instead said “she put it in my face.”  Ms. Fitzpatrick confirmed that she wrote an incident report after the incident and Mr. Nolan noted that it had not been produced in evidence.

Mr. Nolan put it to Ms. Fitzpatrick that until her evidence there had been no challenge to Ms. Gul’s evidence that her mother had been standing at reception.  Ms. Fitzpatrick responded with a question “Why would I offend her”.  Mr. Nolan put it to Ms. Fitzpatrick that there was an ID policy and that she went too far.  Ms. Fitzpatrick replied that she did her job.  Mr. Nolan put it to her that she had spoken very loudly and she replied that there is a screen between her and patients, that it doesn’t block sound but it does mean that staff have to speak a little louder and she advised that she wasn’t making life difficult, that she just needed ID.

Ms. Fitzpatrick confirmed that there was an issue with the payment and that it wasn’t processed immediately.  She advised that she gave Ms. Gul the safety form, and that the Radiographer helped in the completion of that form.  She stated that after the Complainant’s mother went into radiology Ms. Gul came back to reception about the payment.

Mr. Nolan put it to Ms. Fitzpatrick that she challenged Ms. Gul about variances in the date of birth and that she did so loudly so as to make an example of her.  Ms. Fitzpatrick stated that was not true.   She stated that Chester came up and went through the safety questionnaire and that Ms. Gul asked about going to the imaging area.  She stated that this was generally not allowed, that this was for safety reasons and that most people didn’t have someone with them.

Mr. Nolan put it to Ms. Fitzpatrick that surely it was “not allowed” to have a male Radiographer assisting a Muslim lady and he queried if she had asked if Ms. Gul could assist her mother.  She stated that there was no need as there was a female aide.  Mr. Nolan noted that this was new information.

Ms. Fitzpatrick stated that the Respondent treats “the whole area as a safety area”, that Ms. Gul “probably wanted to go to both” but that they don’t let people go “unless there are extenuating circumstances.”

Mr. Nolan referenced the MRI Policy and noted that Ms. Gul repeatedly asked about assisting her mother and indeed why another person had been allowed.  Ms. Fitzpatrick stated that she didn’t ask and she asked “what’s the difficulty with the other person who had someone with him he was a 93-year-old.

In relation to the removal of the headscarf Ms. Fitzpatrick gave evidence that it was not removed at reception.  Mr. Nolan stated that this evidence directly conflicted with Ms. Gul’s evidence and that it had not been put to her that she did not take off her mother’s scarf.  Ms. Fitzpatrick stated that the scarf was not removed in reception and that it was still on Mehr un Nisa when she went through the double doors.  She stated that Ms. Gul was wrong.

In response to queries from the Adjudication Officer Ms. Fitzpatrick confirmed that on the day there were Radiographers and Aides going back and forth from the changing/imaging area to reception all the time.  She confirmed that the Radiographer did not pull down the scarf, that he had a lot of Muslim patients and that he would always bring a female aide and was aware not to touch patients.  She stated that it was absolutely clear that he did not touch her, that it was very clear on religious grounds.

She stated that there was always a limit on the people who could enter even the changing area because from there it is possible to access the scanning area.

Ms. Fitzpatrick also confirmed to the Adjudication Officer that patients are not asked to remove anything in the public area, they are asked to change in the changing room and she stated that the Complainant’s mother was still wearing the scarf when entering the changing area.  She also confirmed that she had no advance warning of the attendance of Ms. Gul.

Ms. Fitzpatrick gave the following evidence:

·         There were staff going back and forth throughout the day, there were 2 other receptionists and a staff member (Jade) standing behind her while she was processing the appointment

·         The cleaning lady does not do hoovering during clinic time and she was not really sure if she was around

·         That while Ms. Gul had said that she (Ms. Fitzpatrick) came out and met Ms. Gul and her mother and offered to assist with the paperwork, it was her position that they had the paperwork.

·         Ms. Gul asked to go to help her mother change, she asked twice and Ms. Fitzpatrick stated that she told Ms. Gul that there was someone there to help

·         Ms. Gul said that she had been allowed enter on previous occasion

·         Ms. Fitzpatrick advised that access is granted on a case-by-case basis, that she could see that the Complainant was fit, and someone would only be allowed access if they really needed help and she gave the examples of where there were mobility issues or someone suffering from claustrophobia.

Mr. Nolan put it to Ms. Fitzpatrick that it was Ms. Gul’s uncontested evidence that she had raised concerns about her elderly mother and had been advised that she could not enter because of infection control reasons.  Ms. Fitzpatrick stated that she could not remember if she had said about infection guidelines. Mr. Nolan put it her that had the circumstances been properly considered then Ms. Gul might have been allowed assist her mother.  Ms. Fitzpatrick stated that she did not think that was true.

Mr. Nolan put it to her that Ms. Gul had pleaded to be allowed assist her mother, and Ms. Fitzpatrick stated that she just asked Chester if she could go in to help her change and that he replied that there was someone there to help her change.

Ms. Fitzpatrick confirmed that there were a few people with her at the time, and she named Jade as one particular person who was there.  She stated that Jade was the person who removed the scarf and that she did see her inside the doors wearing the scarf.

Witness evidence – Ms. Jade Brooks

Ms. Brooks confirmed that she was the Radiography Aide present in Affidea when the Complainant and her mother attended for appointment on 4 November.  She confirmed that she recalled them attending the clinic and that she was down in reception because she was there to collect her next patient (Mehr un Nisa). 

Ms. Brooks confirmed that she recalled there being 5 people at reception – 2 receptionists, Chester, herself and another Aide.  She stated that there may have been some others coming and going. 

Ms. Brooks gave evidence that Mehr un Nisa had her scarf on in reception and that there was no way a Muslim person would have been asked to remove the scarf, and she was emphatic that Chester certainly did not pull down the scarf.  She also gave evidence that Mehr un Nisa was fully clothed including her headscarf while at reception, that the procedure was explained to her at reception and that she was brought for weighing.  She confirmed that Mehr un Nisa was brought to the changing room and it was again explained to her that “everything needed to come off” in advance of the scans.  Ms. Brooks gave her a gown and left.  Ms. Brooks gave further evidence that there was no interpreter used but that Mehr un Nisa did understand what was said to her and that she left her on her own in the changing room to undress.  Ms. Brooks confirmed that Mehr un Nisa was fully clothed and wearing a scarf on her head when she entered the changing room.

Ms. Brooks confirmed that she was no longer working with Affidea and that she had left their employ on good terms.

Cross examination of Ms. Brooks

Ms. Brooks confirmed that she left Affidea in March 2025 and that she did recall much of the detail of the day of the appointment on 4 November.

She gave evidence that most days there were about 30 patients attending and she recalled on that day that there was “a little bit of conflict at reception” and that Ms. Gul was not happy.  She stated that Ms. Fitzpatrick conducted a normal interaction and that you could tell a normal interaction and when one side was unhappy.

Ms. Brooks stated that there were 2 receptionists sitting at the desk, and that 3 other members of staff were standing up behind.  She stated that 2 of those standing were Radiography Aides.

Mr. Nolan asked Ms. Brooks if it was the case that 4 people were standing there, if this would be unusual.  Ms. Brooks confirmed that it would not be unusual for them to be there but that it would be unusual for them to be standing and watching, rather than coming and going.  She stated that she wasn’t there the whole time.  Mr. Nolan asked if she could recall the content of the conversation between Ms. Fitzpatrick and Ms. Gul.  Ms. Brooks stated that she did not recall the details of the conversation but was aware of things involving the Complainant’s mother’s name.  Mr. Nolan asked if she could hear the discussion and Ms. Brooks confirmed that she could not but she noted that Ms. Gul didn’t look happy.  She advised that she did not seek to assess why Ms. Gul “didn’t look in a good mood” because it was not her job.

Ms. Brooks gave evidence that Mehr un Nisa’s scarf was not removed in the reception area because it was not allowed.  She stated that she didn’t have to take off her scarf in public, though she did need to remove it for the scan and she stated that “every Muslim person can make their choice to reschedule”.

Mr. Nolan asked Ms. Brooks how she knew that no one asked the Complainant’s mother to remove her scarf at reception and she replied that she was there for the whole interaction.  She stated that “this woman was well able to look after herself” and that she was able to walk down and get on and off the bed.  In response to a query from Mr. Nolan she advised that she was helped by an Aide.

Mr. Nolan drew attention to the fact that no evidence or suggestion had been put forward prior to this testimony that it was suggested to the Complainant and her mother that Mehr un Nisa would be assisted by a female Aide.  Ms. Brooks replied that Chester had explained it at reception and had translated.  She stated that she explained briefly again while bringing the Complainant’s mother to the changing room and that she “knew that she (Mehr un Nisa) knew”.  Ms. Brooks stated that she was there “the whole time”.

Mr. Nolan put it to Ms. Brooks that, in fact, Ms. Gul was left with no option but to remove the scarf in the reception area, Ms. Brooks replied that the Complainant’s mother removed it herself in the changing room.  In response to a request for clarification from the Adjudication Officer, Ms. Brooks stated that the Complainant was “well able to take off her clothes”.

Concluding Remarks on behalf of the Respondent

Mr. Quinn concurred that the genesis of this complaint arose from the events of 21 October and he submitted that it arose out of Ms. Gul losing her composure with Ms. Mulville and her annoyance from the subsequent letter that was issued by the Respondent.  He stated that on 4 November, and based on her own evidence, it was reasonable to believe that Ms. Gul attended the clinic in Dundrum with a preconceived belief about what was to come and that she went in “looking to be insulted”.

Mr. Quinn stated that at it’s height this was a case of a “slight fall off in service” but that at no point were the actions of the staff of the Respondent motivated by race or religion.  He stated that Ms. Gul was advancing this complaint on the grounds of race and religion so that she can feel justified in pursuing the matter.  He stated that regardless of where she was from or her religion, the same issues would have arisen in the circumstances and he stated that the Complainant had not proven a prima facie case of discrimination.

Mr. Quinn stated that it was not accepted by the Respondent that the headscarf was taken off at reception and he posed the question as to why Ms. Gul would have removed the scarf, thereby exposing her mother to a breach of her religious practice. He noted that the Complainant was resiling from the allegation that her mother was pushed.

Mr. Quinn stated that the Respondent had done everything possible to facilitate the Complainant’s mother on the first day of hearing including accommodating arrangements when difficulties arose in relation to the Interpreter.  He stated that Ms. Gul had arrived at Affidea Dundrum with a preconceived view, that it was simply not credible that people were hanging around for the purpose of intimidating the Complainant and her mother and that there was a major difference between clear evidence and evidence not put in cross examination.  Mr. Quinn asked that the Adjudication Officer factor these matters into consideration of the complaint and find in favour of the Respondent.

I have given careful consideration to the submissions of the parties, the representations at hearing and the witness evidence given over the course of the two days of hearing.

Preliminary Issue -Irrelevant Issues

The Respondent drew attention to a number of issues that it considered as not relevant to the instant complaint and requested that these matters not be taken into consideration or specifically referred to in this decision.  The Complainant accepted this position and advised that the matters had been referenced in the submission by way of general background.

I am satisfied, based on the positions outlined at hearing, that the above referenced matters are the subject of separate proceedings and have no direct bearing on the instant case.  In that context, I have not taken the details of those matters into consideration in reaching a determination in this matter.  In addition, I have not outlined the details of those matters nor have I made mention of any individuals connected to those matters.

Preliminary Issue - Temporal Limits

The Respondent submitted that the matters set out in paragraphs 6-12 inclusive of the Complainants’ submission were out of time and not relevant to the proceedings as they fell outside the 6-month window. The complaints are out of time save for those dated from 26 October 2023 onwards.

I note that the issues referred to in paragraphs 6-12 of the Complainant’s submission relate to events that have no direct bearing on the instant complaint, other than by way of general background to the relationship between Ms. Gul and the Respondent.   I accept the Respondent position that these matters are out of time and that the matters that are in scope for the purpose of the instant complaint are matters from 26 October 2023 onwards.

The Complaint

The Complainant alleged that she was indirectly discriminated against by the Respondent on the grounds of race and religion.  The Respondent denied the allegation.

Indirect discrimination occurs when an apparently neutral requirement makes it more difficult for someone to access  goods or services because they differ on one or more of the grounds provided for in the Act.

Section 3(1) of the Act provides, inter alia, 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) (in this Act referred to as the ‘‘discriminatory grounds)’’ which- {….]”

Section 3(2) provides that: as between any two persons, the discriminatory ground of religious belief  is defined as

“(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”) ….”

and

The discriminatory ground of race is defined as  “(h)  that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”).”

Burden of Proof

Section 38A of the Act deals with the Burden of Proof and states as follows:

“38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

In evaluating the evidence before me, I must first consider the following:

(i)                  if the complaint is properly before me and

(ii)                if the Complainant has established a prima facie case pursuant to Section 38A of the Acts. 

This requires the Complainant to set out in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her.  It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In relation to (i) above I find that this complaint is properly before the WRC and was submitted within the requisite time-limits prescribed by Section 21 of the Acts, including those for giving notice of a complaint to the Respondent by means of submission of the ES1 form and referring the complaint to the WRC.

In relation to (ii) above there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (e.g. race, religious belief).

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable that the treatment someone, not covered by the same ground(s), would have received in similar circumstances.

A prima facie case is established only when all three criteria are satisfied and only then the burden of proof shifts to the Respondent to rebut the claim of discrimination. 

The law in relation to discrimination is well established in this jurisdiction:

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows:

“The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary fact from 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 provide that there was no infringement of the principle of equal treatment”.

It is important to preface my consideration of the evidence in this case by recording that the Complainant’s mother was a 75-year-old Pakistani lady who was visibly timid and frail. It was evident that she had no English to speak of, and I noted that, at times, there were challenges with translation, and these were described by the Interpreter as issues relating to dialects and with there being no direct translation of specific English words.  I observed that the Complainant seemed confused at times and overwhelmed by the entirety of the proceedings.

In the instant complaint it was common case that the Complainant and her mother were Muslim, of Pakistani origin and in summary it was her evidence that she was discriminated against by the Respondent on the ground of race and religion when she attended the Respondent clinic in Dundrum on 4 November with her mother for scans. 

I summarise her concerns as follows:

         I.            She was subject to specific treatment by the Receptionist in relation to her mother’s name and was ridiculed loudly in front of other service users and other service users of Irish nationality were not

       II.            She was required to produce ID to identify her mother while other service users of Irish nationality were not

     III.            She was obliged to remove her mother’s headscarf in a public area in contravention of her religious beliefs and practices as she was not granted access to assist her in the changing area

    IV.            She was not allowed to support her mother in the changing room while other service users of Irish nationality were allowed have support people in that area

Establishment of Prima Facie Case of Discrimination

Allegations regarding Initial Interactions at Reception on 4 November

I noted the Complainant submission that there were a number of people (5/6) present at reception when she and her mother arrived at the clinic.  She submitted that when she approached the receptionist, she was handed a piece of paper and asked to write down her mother’s name, and that the receptionist said that her name “does not make sense” and that she needed “a correct one”.  Ms. Gul advised the receptionist that her mother’s name was on the system already as she had multiple scans previously done in Affidea. She submitted that ultimately, she was asked to provide ID and had to contact her son to send her a copy of her mother’s passport which the receptionist indicated could not be used. 

Ms. Gul provided detailed evidence, indicating that there were perhaps 5 people standing behind the second receptionist when they arrived and that they were there watching and for the purpose of creating an intimidatory aura.  Ms. Gul stated that she and her mother were redirected to the second receptionist and she was clear in her evidence and under cross examination that she was asked to write her mother’s name on a piece of paper and that when she returned that to the receptionist, the receptionist responded by saying “Oh, what kind of name is that and what is the surname”.  She gave evidence that she explained that her mother was on the system from before, but the Receptionist replied that “it doesn’t make sense if there’s no surname”.  Ms. Gul also gave evidence that she explained that in her tradition two names are not used but the Receptionist repeated that “it doesn’t make sense” and that ultimately the Receptionist asked for ID which resulted in her having to contact her son and have a scanned copy sent to her phone, which was then rejected by the Receptionist.

I noted the evidence of Ms. Gul that the Receptionist spoke loudly enough to be heard by other patients in the waiting area, thus causing embarrassment to Ms. Gul and her mother.  I noted further Ms. Gul’s evidence that no other patient attending at that time was subject to that level of interrogation regarding their identity.

Mehr un Nisa’s evidence at hearing was broadly consistent with the submission in relation to the above matters. 

I noted the Respondent submission that the Receptionist attempted to clarify identification details with Ms. Gul, in circumstances where it was confirmed that Mehr un Nisa did not speak English and that each point of clarification was met with resistance and questioning by Ms. Gul. I noted that in its’ submission the Respondent entirely refuted the statements attributed to the Receptionist and stated that the procedure employed conformed with the Patient ID policy.  I further noted the Respondent position that Mehr un Nisa at all times was very pleasant and gracious and at no point raised any complaint or concern.

Ms. Fitzpatrick’s evidence in relation to the staff numbers at reception was that “she could not say how many people were there, but that Saturdays are generally busy.”  However, she later gave evidence that there were aides working with each MRI scanner and that the aides come up to collect patients and that 2 aides may have been there and that “Chester” may also have been there.  She stated that they were not standing there in a state of expectancy and that “nothing was done to intimidate Dr. Gul or her lovely mother”. 

Ms. Fitzpatrick stated that there were 2 receptionists present and that she could not recall why Ms. Gul and her mother were directed to her. She gave evidence that she asked Ms. Gul for the name of the patient as Ms. Gul had come to the desk while her mother had sat down.  She stated that she could see that surname on the screen, that 4 tests were scheduled, correct spelling, a date of birth, address and correct referring GP, Dr. Gul.

Ms. Fitzpatrick confirmed that she had no difficulty finding the appointment that there was a surname and a title (Mrs) but no forename.

Ms. Fitzpatrick gave further evidence that she did not say that the name didn’t make sense and that she said to Ms. Gul that she needed to check the spelling of her mother’s name and that when she couldn’t confirm she asked for ID.  Ms. Fitzpatrick then asked Ms. Gul to get a copy of her mother’s ID and it was her evidence that when this was “put in her face” she advised Ms. Gul that she could not scan an image from a phone onto the system but that she would take a note.  Ms. Fitzpatrick also gave evidence that she asked if Mehr un Nisa could speak English because she was required to complete the safety questionnaire.

There was only one other witness who gave evidence at hearing about this interaction and that was Ms. Jade Brooks.  Ms. Brooks evidence was that there were 2 receptionists present, 2 Radiography Aides and “Chester” and that the latter three individuals were standing behind Ms. Fitzpatrick.  She also stated that there may have been others coming and going from the area at that time.  Her evidence was that Ms. Fitzpatrick’s demeanour seemed usual while Ms. Gul appeared unhappy and not in a good mood.  However, this evidence does not assist with understanding what was said as Ms. Brooks was clear that she could not hear.

I found Ms. Fitzpatrick to be evasive and at times, disrespectful while giving her evidence.  She was dismissive towards the Complainant representative to the point of “smirking” at some of his questions.  She was unclear in relation to who was present at reception on 4 November, unclear in relation to why Ms. Gul and her mother had been redirected to her, but she was certain of exactly what she had said to Ms. Gul.  Above all else I could not reconcile her testimony that she could see the appointment for Ms. Gul’s mother, which included the correct spelling, a date of birth, an address and referring GP, that she had no difficulty finding the appointment as there was a surname and a title with her later evidence that she required to check the spelling of the name.  She denied that she had a difficulty with the name and advised that she merely wanted to check the spelling of the name, yet she had already confirmed in evidence that the name was on the system and correctly spelled.  If she had the required information to verify the appointment, why did she require Ms. Gul to get ID?   She stated that this was because Ms. Gul could not provide the correct spelling of her mother’s name and again this evidence simply does not make sense. Ms. Gul, at hearing, repeatedly gave the correct spelling of her mother’s name.

I fully accept that any healthcare provider would need to verify the patient information, but the Mehr un Nisa’s information was already on the system and the Receptionist evidence was that she could find that information on the day.

Taking all of the above into account I have concluded that there were at least 5 people at reception when Ms. Gul and her mother attended on 4 November and that Ms. Gul was put to extraordinary lengths to verify her mother’s identity before she was checked in for her scans and that this was done in a demeaning and disrespectful manner.  I accept that other patients, identified as white and Irish were not subjected to this treatment. I also accept Ms. Gul’s account of the statements made by the Receptionist in relation to her mother’s name based on the fact that she was consistent in her evidence and that Ms. Fitzpatrick was not consistent and much of her evidence simply did not make sense.

Allegations regarding the removal of Ms. Gul’s mother’s headscarf in a public area and Ms. Gul not being permitted to enter the changing area with her to provide assistance

I noted the Complainant submission that Ms. Gul was informed that she could not accompany her mother for the imaging, that Ms. Gul asked that she be allowed to assist her mother to change in the changing room, and then to leave but this was refused, on the basis of infection control.  Ms. Gul agreed that this would be correct for the imaging itself but requested that she only be allowed into the changing room to assist her mother, which was again refused.  I further noted that the Complainant submitted that as a result of these refusals she had, in full view of staff and other patients, to remove her mother’s scarf in the waiting area. 

The Complainant further submitted that an employee named Chester came to bring her into the imaging area; and that she said to him “I think that there is something more to the way I am being treated”; and he half nodded and collected her mother.

I noted the Complainant submission that whist she was waiting in the reception area she noted that another elderly patient was allowed have a companion accompany her into the area for imaging and scanning but that Ms. Gul was told that this was for of “a different type of scan”.  When Ms. Gul questioned this, as she had been told she could not accompany her mother due to infection control and not due to the type of scan, the staff member then went into the scanning area and brought back out the person who had accompanied the earlier patient. 

I noted Mehr un Nisa’s evidence at hearing that she was alone in the changing and imaging area as the staff would not let her daughter in and she noticed that other people were allowed to have someone accompany them. She also gave evidence that her scarf was taken off in the reception area and that there were other men present.  She stated that she became upset and started to cry and that a staff member pushed her.    I noted her evidence under cross examination that “they” asked her to remove her scarf at reception and initially she stated that she did not know the people there.  However, she also gave evidence that

when she was being taken to the MRI there was a male who took it off and pushed her forward, telling her “quickly, quickly” and she confirmed that statement twice. 

When it was put to her that the Radiographer would give evidence that when she came down for the MRI, she still had her scarf on, Mehr un Nisa replied that she did have her scarf on but that “they had removed it”.  She was asked to provide clarity on which room she was in when the scarf was removed, and she confirmed that she had no scarf at the imaging room.  She stated that she would have preferred to have the scarf even in the imaging room but that they took it off.  When further queried on this matter she confirmed that they took it off at reception and pushed her onwards.  She confirmed, again, that it was already removed before she entered the changing room and that a man took her scarf off at reception.  She repeated that it was a male member of staff and that he was accompanied by a female staff member and they took her scarf off.

I noted further that when it was then put to Mehr un Nisa that her submission stated that Ms. Gul had taken her scarf off she responded that “it was them”.  However, she did acknowledge that Ms. Gul had loosened her scarf.

Mehr un Nisa confirmed that she was pushed twice by the male member of staff, once in reception and thereafter as he pushed her towards the changing room.  She also gave evidence that when she was in the imaging area there was another person having scans done and that they were accompanied by their daughter.

Ms. Guls evidence regarding these matters was that she asked “Chester” if she could attend with her mother in the changing area to assist her with changing her clothes and that she was refused on the grounds of infection control.  She then asked the receptionist if it would be possible and explained about her mother’s frailty.  This request was also refused.  It was her evidence that she was becoming stressed and that her mother was becoming confused and upset by events, and in an effort to help her, on the spur of the moment she removed Mehr un Nisa’s scarf and coat in order to make it easier for her to manage alone in the changing area.  Ms. Gul stated that she felt she was left with no option but to do so.  Ms. Gul also confirmed that “Chester” did not push her mother but merely placed a guiding hand at her back.

It was also Ms. Gul’s evidence that she observed two other individuals entering the area with patients going for scans and that she brought one of those cases to the attention of the Receptionist on the day.  It was her evidence that soon after, the receptionist went into the area and brought the person back out to the waiting area.  It was Ms. Gul’s evidence that these individuals were Irish.

I noted Ms. Fitzpatrick’s evidence that Chester came up and went through the safety questionnaire and that Ms. Gul asked about going to the imaging area.  It was her evidence that this was generally not allowed for safety reasons and that most people didn’t have someone with them.  Ms. Fitzpatrick confirmed that there was no need to ask if Ms. Gul could attend with her mother as there was a female aide.  Ms. Fitzpatrick also stated that the Respondent treats “the whole area as a safety area”, that Ms. Gul “probably wanted to go to both” but that they don’t let people go “unless there are extenuating circumstances.” 

When queried about potential extenuating circumstances Ms. Fitzpatrick gave some examples of when it might be appropriate to allow someone to accompany a patient.  In response to queries regarding another person being allowed into the area Ms. Fitzpatrick stated that Ms. Gul didn’t ask and she posed the question “what’s the difficulty with the other person who had someone with him he was a 93-year-old.”

I noted Ms. Fitzpatrick’s evidence in relation to the removal of Mehr un Nisa’s headscarf that it was not removed at reception.  Ms. Fitzpatrick reaffirmed her statement that the scarf was not removed in reception and that it was still on her when she went through the double doors.

Ms. Brook’s evidence in this matter was that Mehr un Nisa had her scarf on in reception and that there was no way a Muslim person would have been asked to remove the scarf, and she was emphatic that Chester certainly did not pull down the scarf.  She also gave evidence that the Complainant’s mother was fully clothed including her headscarf while at reception, that the procedure was explained to her at reception and that she was brought for weighing.  She confirmed that the Complainant’s mother was brought to the changing room, and it was again explained to her that “everything needed to come off” in advance of the scans.  Ms. Brooks gave her a gown and left.  Ms. Brooks gave further evidence that there was no interpreter used but that Mehr un Nisa did understand what was said to her and that she left her on her own in the changing room to undress.  Ms. Brooks confirmed that Mehr un Nisa was fully clothed and wearing a scarf on her head when she entered the changing room.

The was significant disparity between the witnesses in relation to the matter of who removed the headscarf and where it was removed.  The Complainant’s submission was that it was removed in the reception area by Ms. Gul and Ms. Gul’s evidence was consistent with that position.  However, Mehr un Nisa’s evidence was that it was removed at reception by a male member of staff and she repeated this evidence, even when challenged under cross examination.  However, she did acknowledge that Ms. Gul had loosened her scarf.

It is difficult to place weight on the evidence of Mehr un Nisa in this matter.  Her evidence appeared generally confused and some difficulties that arose in relation to the question of “pushing” may have arisen as a result of some matters being lost in translation.  It was also evident at hearing that she became distressed when recounting these particular events and this may also have contributed to a deal of confusion.

Ms. Fitzpatrick was equally adamant, that the Complainant’s mother had her scarf on as she went through the double doors and that her scarf was removed by Ms. Brooks.  Ms. Brooks agreed that the Complainant’s mother had her scarf on when entering the changing room but advised that she removed the scarf herself.  In circumstances where Mr. Chester Cruz was the male member of staff present at the time that the Complainant was prevented from entering the changing area and at the time that Mehr un Nisa alleged a male member of staff removed her scarf and pushed her, it was remarkable that the Respondent chose not to call him to give evidence, despite his presence at the hearing. 

Again, I had some difficulty with Ms. Fitzpatrick’s credibility in her general evidence, in relation to the matters outlined above and I noted that Ms. Fitzpatrick responded to the first question asked of her under cross examination by stating that that she knew the Complainant’s mother’s name and the name of the referring doctor and that this information was on screen and that she was also aware from that record that the referring doctor was the daughter of the patient.  However, when it was later put to her that Ms. Gul’s mother wasn’t just any patient she replied “I didn’t know who she was, this was her mother’s name on the list”… “I didn’t know who her daughter was.”  However, I did find Ms. Brooks to be direct and straightforward in her evidence.

On balance, I find Ms. Gul’s evidence to be the most compelling.  It was not to her advantage to confirm that her mother was not pushed, and neither was it to her advantage to confirm that she, rather than a male member of staff removed the headscarf.  Her evidence in this regard, went unchallenged by the Respondent during cross examination. Taking all of the above into account, I find, on the balance of probabilities, that Mehr un Nisa’s headscarf was removed by Ms. Gul at the reception area and I also find she was not pushed by a male member of staff.

In relation to Ms. Gul’s request that she be allowed to enter the changing area to assist her mother I accept, based on the evidence outlined above, that she did ask “Chester” to be allowed to enter the changing area.  In the absence of Chester’s testimony, I must conclude that her version of events is accurate, that being that he refused her admittance on the basis of infection guidelines.

I also accept that she did ask the Receptionist to be allowed to enter the area and Ms. Gul’s evidence in this regard was borne out by Ms. Fitzpatrick’s evidence.  I noted Ms. Fitzpatrick’s evidence that the Complainant’s mother was fit enough to manage herself and would have the support of an Aide.  From my observations of the Complainant’s mother, I cannot accept this position.  Mehr un Nisa was a frail woman of 75 years with no English, a Muslim woman with a nervous disposition.  It was evident from her own testimony that Ms. Fitzpatrick did not ask anyone else if Ms. Gul could be facilitated.  Ms. Gul was not just the daughter of the patient, she was also the referring GP, and she indicated that her mother needed assistance.  Ms. Fitzpatrick made the decision, when she was asked, without consulting with any clinical member of staff, that the Complainant’s mother was sufficiently fit to proceed to the changing area and sort herself out.  I accept the Respondent position that its’ policy was to evaluate on a case-by-case basis, but I do not accept that this was a sound or reasoned evaluation.

It is also evident that at least one other patient, the 93-year-old man, was permitted to be accompanied by a family member.  It seems clear to me that this elderly gentleman was frail and in need of assistance with changing for his scans and while I acknowledge the age difference between him and the Complainant’s mother, it seems to me that the circumstances were the same as those pertaining to the Complainant’s mother.

I have concluded that Ms. Gul was unreasonably prevented from entering the changing area to assist her mother and that in that regard she and her mother were treated differently to the Irish patient who was permitted to bring assistance.

Based on all of the above and having considered the totality of the evidence in this matter I find that the Complainant has established a prima facia case of discrimination.

The Substantive Case

The Complainant’s mother is a 75 year old Muslim lady who had practically no English.  She attended Affidea on 4 November for a number of scans and was referred there by her daughter, Ms. Gul who was also a GP.

I view the events of 4 November as being the core substance of this complaint of discrimination and I have outlined my findings and the basis for those findings under the heading “Establishment of Prima Facie Case of Discrimination” above. 

1.       In relation to the interactions at reception I found that

·         There were at least 5 people at reception when the Complainant and her mother attended on 4 November

·         Ms. Gul was put to extraordinary lengths to verify her mother’s identity before she was checked in for her scans

·         This was done in a demeaning and disrespectful manner

·         Ms. Gul’s account of the statements made by the Receptionist in relation to her mother’s name were accepted by me

·         Other patients, identified as white and Irish were not subjected to this treatment

In relation to the above matters I found the evidence of Ms. Fitzpatrick was not consistent and much of her evidence simply did not make sense.

2.       In relation to allegations that the Complainant’s mother’s headscarf was removed in a public area and that she was pushed, I found on the balance of probabilities that her headscarf was removed at reception by her daughter, in circumstances where both the Complainant and her mother became upset and stressed by Ms. Gul being refused entry to the changing area.

In relation to the above matters I found that I could not take account of the Complainant’s mother’s evidence which was very confused and at odds with the submission.  There was also clear evidence from multiple witnesses that she was not pushed.  In relation to the removal of the headscarf, there was considerable variance in the accounts given and the Radiographer present at the time was not called to give evidence despite being present at hearing.  In addition, I found Ms. Gul to be a very credible witness who gave testimony, even when that testimony was not as robust in favour of herself or the Complainant.

3.       In relation to the allegation that Ms. Gul, was denied entry into to the changing area to assist her mother while other Irish patients were allowed bring assistants into the area I found Ms. Gul was refused admittance to the changing area by “Chester” on the basis of infection guidelines.  I also found that she asked the Receptionist to be allowed enter and was again refused.  I found that the circumstances of that refusal was that the Receptionist determined that, although a patient may be accompanied in extenuating circumstances, the Complainant ‘s mother was fit enough to look after herself.  I found that the Receptionist did not seek any clinical input in making that determination and ignored the information provided by Ms. Gul, who was a medical practitioner.  I found that, notwithstanding the age difference between the Complainant’s mother and the patient who was allowed bring support into the changing area, their circumstances were the same.  However, he and his companion were Irish, and the Complainant and her mother were not.

In all the circumstances I concluded that Ms. Gul was unreasonably prevented from entering the changing area to assist her mother and that in that regard she and her mother were treated differently to the Irish patient who was permitted to bring assistance.

In addition to the above issues, some considerable hearing time was given over to events that occurred on 21 October and to the relevance of those events to subsequent events of 4 November.  I do not propose to go through a detailed outline of all the evidence, but I will outline my assessment of that day and it’s impact on the events of 4 November.  I do so in the context that it was the Complainant position that there was a contrivance or a conspiracy (my description) to undermine her at the visit and thereafter.  It was also the Respondent position that after the events of 21 October Ms. Gul attended for the appointment “ready to be insulted”.

In considering the events of 21 October I noted that by the time of the hearing the Respondent accepted that Ms. Gul had been given an appointment for 21 October, however, in writing out to her about the events that transpired on the day, the Respondent denied that any such appointment existed.  Additionally, Ms. Gul was admonished for her behaviour towards a staff member, which was described as “abuse”.  This admonishment came in the context that the Respondent had not advised her of any complaint made against her and had not given her any opportunity to provide a response to the complaint.  It seems understandable to me that, in such circumstances, Ms. Gul would approach the next appointment with a degree of anticipatory anxiety.

On the other hand, it is clear, that, Ms. Mulville was greatly upset by the interaction between herself and Ms. Gul on 21 October.  It is clear that Ms. Gul was annoyed at the mix up, annoyed at the inconvenience and confusion arising for her mother and annoyed that she was not accommodated in some way on the day.  It is clear that Ms. Gul indicated that as she was a GP who frequently referred patients for scans, and she felt entitled to be accommodated.  When she wasn’t she sought the name of the Receptionist and the name of the Radiographer and other relevant details in order to make a complaint.  I don’t doubt that such circumstances left Ms. Mulville feeling vulnerable and upset and I also don’t doubt that other staff became aware of what had occurred.  Ms. Fitzpatrick, in her evidence confirmed that she had some awareness of what had occurred.  In those circumstances, it is not difficult to imagine that staff were on the alert when Ms. Gul returned on 4 November and that, they too were experiencing a degree of anxiety in advance of the appointment. 

However, while the anxiety on both sides is understandable, there is no evidence that the presence of staff at the reception area was for the purpose of creating an intimidating atmosphere and there is no evidence to suggest that the failure to process the payment thereafter was designed to make future allegations against Ms. Gul. 

On the other hand, nothing that occurred on 21 October explains or excuses the degree of unreasonable behaviour that the Complainant and her mother were subject to on 4 November. 

The Respondent proposed that the events of that day at their height could only be described as a slight fall off in service.  I did not find that to be the case. 

I found that the actions and behaviour of the Receptionist in relation to the Complainant’s mother’s name were far in excess of what was required to identify the patient and were notably different to how Irish patients were treated, and I found the evidence of the Receptionist to be not credible.  In this regard the Respondent has failed to rebut the prima facie case of discrimination on the ground of race.

I found the actions of the Respondent staff in refusing to admit Ms. Gul into the changing area when they admitted individuals to support at least one Irish person in the same circumstances to be unreasonable and notably different to how the Irish patient was treated.  The evidence of the Receptionist that she did not seek any clinical input before deciding on Mehr un Nisa’s fitness to look after herself in the face of medical information to the contrary, and the absence of testimony from the Radiographer involved led me to the conclusion that the Respondent has failed to rebut the prima facie case of discrimination on the ground of race.

In relation to the aforementioned matters, I find that the complaint of discrimination on the ground of race is well founded.

In relation to the matter of the removal of Mehr un Nisa’s headscarf  I am satisfied that the circumstances that transpired on the day in relation to the interactions at reception and the refusal of entry to the changing area contributed to a very stressful situation for the Complainant and her mother and that this, in turn, resulted in Ms. Gul removing the scarf in a public area.  I consider this specific event to be the subject of a complaint of discrimination on the grounds of both race and religious belief.

I am satisfied that no staff member of the Respondent removed the scarf, and I am equally satisfied that no staff member asked for the scarf to be removed in the public area.  On the balance of probabilities, I determined that the scarf was removed by Ms. Gul while she was overwhelmed by events as they transpired.  In these circumstances I find that the Respondent has provided sufficient evidence to rebut a complaint of discrimination of the ground of religious belief and on the ground of race in relation to this specific issue.

I found that the Complainant was discriminated against by the Respondent on the ground of race, that her complaint was well founded and I decide accordingly.

Redress

Section 27(1) of the act stated that “the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a)    An order for compensation for the effects of discrimination; or

(b)    An order that a person or persons specified in the order take a course of action which is so specified”

The act also provides at Section 27(2) that the maximum amount which may be order by way of compensation “shall be the maximum amount that could be awarded by the District Court in civil cases in contract.”

I therefore direct the Respondent to pay the Complainant the amount of €5000 as compensation for the discrimination.  I also direct the Respondent to review it’s policies to ensure that they comply with the provisions of the 2000 Act and to provide training for all staff on diversity and inclusion.

Discrimination on the ground of race