Complainant

Respondent

Anonymised Parties

A Patient

A Health Service

Representatives

Catherine Eagers FLAC (Free Legal Advice Centres)

Paul Gough Beauchamps LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064738-001

12/07/2024

The complainant submitted a claim of discrimination in respect of access to a service on grounds of disability on 12th of July 2024.   This claim was submitted under the Equal Status Act as it pertains to access to a service.

The Complainant referred the within complaint to the Workplace Relations Commission (WRC) pursuant to s.21 of the Equal Status Act 2000 and which was received by the WRC on the 2nd of July 2024 with further correspondence received by the WRC on 29th July 2024 and 23rd September 2024.   The complaint alleges discrimination on the 6th and 13th of March 2024 on the disability ground regarding the provision of services contrary to s.3 of the Act of 2000.  

The Complainant in brief alleges she was discriminated against by reason of an alleged failure by the Respondent to provide her with a fitness to work certificate because she is HIV positive.   The complainant has also alleged discrimination in the respondent’s treatment of her on two occasions the first being on the 6th of March and the second on the 13th of March 2024.

The Respondent disputes this allegation.

The Complainant submits that

she is an International Protection applicant and a qualified Healthcare Assistant in Ireland.

She was a service user of the Respondent’s Ukrainian Crisis Clinic set up to cater for Ukrainian refugees but also extended to persons from other countries seeking international protection in Ireland on 6 March and 13-14 March 2024.

The Complainant had been referred to the Respondent’s service due to her relocation to the IPAS centre in Location B.

She required monitoring of a diabetic condition and subsequently sought a fitness to work letter in anticipation of employment by a named Nursing Home after having previously gained work experience in the same and had been offered employment subject to the provision of various documents including a fitness to work letter from a medical practitioner.

The Complainant has a disability, being a historical diagnosis of being HIV positive and it was by virtue of this disability that she submits she was treated in a less favourable manner than a comparable health service user, that service user being any patient without a diagnosis of being HIV positive seeking medical service

The Complainant submits that Dr. A discriminated against her firstly on the 6th of March when she attended Dr A for treatment in relation to her diabetes and also due to a lingering headache. 

The complainant alleges that upon disclosing her HIV status to Dr A the complainant alleges that Dr. A when taking her blood pressure placed some paper towels over her arm before putting the blood pressure sleeve on the Complainant.

The complainant submits that she was further discriminated against by Dr A on 13th of March when she attended Dr A and he failed to provide her with a requested fitness to work certificate. 

It is also submitted that Dr A on this date further discriminated against her by disclosing her HIV positive status to her potential employer over the phone without her permission.

The complainant submits that following this disclosure she failed to secure employment in the Nursing home and that her HIV positive status became public knowledge of other employees of the Nursing Home, some whom were also residents of the IPAS accommodation centre.

The Respondent submits that

Dr A retired from his own general GP practice by reason of reaching the retirement age. He then provided services at the Ukraine and Migrant Clinic in location B.

On or about 6th March 2024 the Complainant first attended the clinic. She required a prescription for diabetic medication and she informed Dr A that she had been diagnosed positive for HIV in Botswana in 2018.

The Respondent submits that Dr A at the time asked the clinic secretary to contact the Mater Hospital Virology clinic to request copies of all the complainants’ medical records.

The Complainant again attended the clinic on 13th March 2024 requesting a medical certificate of fitness to work at a local Nursing Home as a care attendant.

The Complainant informed the Respondent that she had already informed the nursing home of her relevant medical history i.e. diabetes and HIV.

The Respondent Dr A explained to the Complainant that as he had not received any of her medical records, he could not provide the fitness to work certificate at that time and that he needed these records in order to have complete medical knowledge about the Complainant’s HIV status.

The respondent submits that Dr A went on to state that there were two options open to the Complainant, and this was explained to her. One was to get the certificate of fitness from the Virology Clinic at the Mater Hospital whose care she was under and where she would be visiting in a few weeks or alternatively to have the Clinic send her records to Dr A in order that he could complete the cert.

Dr A further explained, confirmed by email to the Complainant, that if the Virology Clinic records showed that the viral titre was negative for HIV, he would be happy to provide the said certificate.

Dr A contacted the Nursing Home in the Complainant's presence, to explain that he was not in a position to provide a certificate of fitness to work at that time as he did not have her medical records but that she had an appointment with the Virology Clinic in 3 weeks’ time and the medical team there could provide the necessary certification.

He was informed by the nursing home that the complainant did not have a job offer at that time, she was only applying to be placed on a panel of Care Attendants if a vacancy arose.   It also came to light that contrary to what she had told Dr A, the complainant had not informed the Nursing Home of her HIV status.

The General Manager of the Nursing Home subsequently wrote to the Respondent informing him that if they received a certificate of fitness from the Mater Hospital that the Complainant would be placed on the panel of care attendants and this would not impede her employment.

The Respondent posted a copy of that letter to the Complainant to reassure her of her employment prospects once the correct documentation was provided.

The Respondent did not treat the Complainant any differently than any other patient but was simply not in a position to provide a fitness to work certificate at that particular time.

 The Complainant herself accepts this in her WRC Complaint Form where she states that "As a doctor who is not my HIV consultant, he had no authority to judge whether I was qualified to work in the nursing home or not".

Preliminary Issues

The respondent submits that the wrong respondent is identified in the claim form.  The complainant’s representative at the hearing submitted that the named respondent Dr. A is not the correct respondent to the claim as he is an employee of a named Health Service.   The complainant sought leave to amend the respondent’s name to that of the Health Service.   It is also submitted by the respondent that the ES 1 form was received outside of the 2-month statutory timeframe.

The matters the subject matter of the within claim are alleged to have taken place on the 6th and 13th of March 2024.  The complainant advised the hearing that she sent a notification of the alleged discrimination to the respondent premises by letter dated 4th of April with a registered delivery date of 18 April 2024 and a response issued from the Respondent’s Social Inclusion Manager, dated 22 July 2024

It was initially argued by the respondent that the notification of the alleged discrimination was not received by the named respondent Dr A as he was no longer employed at the clinic at the time of receipt of the form and so it was at that time sent to the premises where he had been working and where the alleged discriminatory treatment took place.   It was initially argued that the named Respondent Dr A did not receive this until 9th July 2024 as he had retired from the Clinic to where it had been posted and this was no longer his address,  2024 notwithstanding this submission, handwritten notes maintained by Dr A confirm that he did in fact receive the letter of 4 April from the Complainant on the 18th April 2024. 

 As regards the name of the Respondent, the initial claim was referred against Dr A.  The complainant has sought leave to amend the name to the respondent Health Service submitting that Section 42 (1) of the Equal Status Act 2000 (as amended), provides that anything done by an employee or agent in the course of their employment is treated as having been done also by the employer, whether or not it was done with the employer’s knowledge or approval.  It is submitted that the employer is vicariously liable for the alleged discriminatory actions.

From my consideration of this matter, I am satisfied that the correct Respondent in this matter is the Health Service and that no prejudice lies in my exercising jurisdiction to correct the Respondent’s title on the Complaint Form and replace the name of the Doctor with the name of the Health Service.    I am also satisfied from the evidence adduced that the notification requirements of the ESA have been satisfied.

In light of the foregoing I deem I have jurisdiction to decide this complaint and will now set out my findings and conclusions on the substantive matters.

Substantive Matter:

Section 3(1) of the Equal Status Act [2000-2018] states that discrimination shall be taken to occur -

“(a)   where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

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

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 5 (1) of the Equal Status Act [2000-2018] provides that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 (1) of the Act defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public….”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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 import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which she can rely in asserting that the prohibited conduct has occurred.

Accordingly, the Complainant must first establish a prima facie case of discriminatory treatment, and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant 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 a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, 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 drawn”.

In light of the foregoing, I must first consider whether or not the Complainant has established a prima facie case of discrimination. In this regard, I have considered all the evidence, submissions and documentation and I have reached the following conclusions:

Presence of disability and Notification of same

The complainant in the present case submits that she has a diagnosis of Diabetes and of HIV positive status.   It is submitted that she was discriminated against due to her HIV positive status.   It was not disputed that the complainant has a disability within the ambit of the Employment Equality Act, in this case HIV positive status.

The complainant in her evidence stated that she had disclosed her HIV status to Dr A when she first attended the clinic on 6th of March 2024.   The complainant advised the hearing that she had attended the clinic on 6th of March in respect of her diabetes and also due to the fact that she was experiencing headaches.  The complainant advised the hearing that she had advised Dr A that she had been diagnosed with diabetes and that she was also on medication for HIV for which she was attending a consultant in the Mater hospital in Dublin. 

6th of March visit

The complainant advised the hearing that Dr A asked her about her diagnosis of HIV which she felt was discriminatory.  Evidence was adduced at the hearing from witnesses on behalf of the complainant in respect of the stigma surrounding a HIV diagnosis and that the repercussions of same can result in individuals failing to disclose their HIV positive status. 

The complainant went on to state that during the visit of the 6th of March Dr A took her blood pressure during this appointment and stated that he had placed a sheet of Tissue paper over her arm before placing the blood pressure band on her arm.  The complainant submits that Dr A did this due to her HIV positive status and submits that he would not have used a tissue in this way on a patient who was not HIV positive.  Dr A at the hearing denied putting a tissue on the complainant’s arm before taking her blood pressure adding that he is well aware that the HIV virus cannot be transmitted trans dermally and so this would have been a pointless thing to do.  

I am satisfied from the evidence adduced that the complainant was not discriminated against on grounds of her disability in respect of these matters during a visit to Dr A on 6th of March 2024.

13th of March visit

The complainant advised the hearing that Dr A discriminated against her further when she attended the practice again on the 13th of March seeking a fitness to work report for a job in a local nursing home.

The complainant told the hearing that during her appointment, there was another lady present in the room for the duration of the visit and that she did not know who this was or why she was allowed to be present.   Witness for the respondent Dr A stated that the person in attendance was Dr T who is a Ukrainian doctor and given that it was a Ukrainian crisis centre Dr T attended all consultations as she acted as an interpreter for patients from the Ukraine.  Dr T also gave evidence at the hearing and confirmed her role and that she was in attendance during patient consultations with Dr A.   The respondent stated that Dr T would have been introduced to the complainant as she was to all patients who attended the practice.  

The complaint stated that she had told Dr A that she needed a fitness to work certificate in order to take up an offer of employment in a named nursing home and that he had refused to provide this stating that she would have to get the report from her treating doctor in the Mater hospital or that Dr A would have to get her medical records from the Mater hospital to complete the report.

The complainant advised the hearing that Dr A then phoned the nursing home while she was present int the room with her and having made contact with Ms. K manager of the named nursing home he told her that he could not complete the report without the complainants  medical records, Dr A in this conversation referred to her HIV status and the fact that he had no knowledge of her viral load  and so could not complete the report.

The complainant advised the hearing that in doing this Dr A had disclosed her HIV status to the nursing home without her permission and had denied her the chance of employment.

Dr A advised the hearing that prior to the phone call the complainant had told him that she had already disclosed her HIV status to the nursing home in a pre-employment medical questionnaire which she stated she had filled in and had provided details of both her diabetes and her HIV status.    Dr A told the hearing that the complainant had advised him that she had worked in the nursing home for a period of 10 weeks as part of her care assistant work experience, but she was now being offered employment there and so needed a fitness to work report.  Dr A stated that the complainant had told him that the nursing home was aware of her HIV status as she had already disclosed it to them.

The complainant when questioned at the hearing on this point stated that she had told Dr A that the nursing home was aware of the fact that she was HIV positive and that thought she had already disclosed her HIV status to the nursing home prior to this but that she later realised that she had only mentioned her diabetes on the medical form and had forgot to mention the fact that she was HIV positive.    The complainant when questioned clarified that she thought she had already told the nursing home that she was HIV positive.  The complainant in her notification of the 4th of April sent to the respondent had stated “I honestly believe I had ticked it”, this was in reference to having stated on the form that she was HIV positive.

This is in agreement with Dr As evidence that he did not disclose the complainants HIV status to the nursing home as the complainant had already advised him that she had notified the nursing home of her HIV status in her medical form.  

Dr A in his evidence stated that he had phoned the nursing home while the complainant was in the room with him and that he had put the call on speaker phone in order that she could hear the conversation.  Dr A stated that he was under the impression at that stage that the nursing home was already aware of the complainants HIV status as she had told him that she had already disclosed both her HIV and her Diabetes to the nursing home.  

Dr A in his evidence stated that eh complainant had told him that she had previously completed her work experience in the nursing home and that she had disclosed her Diabetes and her HIV status in a pre-employment medical questionnaire.  Witness for the respondent, Dr T who was also present at the time of the complainants visit stated that the complainant told Dr A that she had already disclosed both her diabetes and her HIV status to the nursing home.

The complainant in later evidence stated that although she had thought that she had disclosed her HIV status to the nursing home it came to her later that she had omitted to disclose it.

In considering the evidence adduced in relation to this matter I find it hard to believe that the complainant would forget the fact of having disclosed or failed to disclose her HIV status to her employer.    I am also satisfied from the evidenceadduced on this matter that the claim that Dr A disclosed her condition without her permission must fail as the evidence provided to the hearing was that the complainant had told Dr A that she herself already notified the nursing home of her condition prior to that date.  Accordingly, I am satisfied that the complainant was not discriminated against in relation to this matter.

The complainant submits that the respondent failed to provide her with a fitness to work certificate when she attended requesting same on the 13th of March 2024 and that this amount to discrimination.   

Dr A advised the hearing that he did not have the complainant’s medical records in respect of her HIV diagnosis and treatment and so he was unable to provide her with a fitness to work certificate.  Dr A advised the hearing that the complainant had told him that she was seeing a consultant in the Mater for treatment of her HIV condition and that she was due to attend this consultant in a fewweeks’ time.   Dr A advised the hearing that he then told the complainant that she could contact the hospital and get them to send her file to him in order that he could complete the fitness to work certificate or she could wait until she saw her consultant and ask her consultant to complete the fitness to work certificate. 

Dr A advised the hearing that he was conscious at the time that his inability to complete the fitness to work certificate there and then could delay the complainants start date in the nursing home job and so he had told the complainant what the options were but that there would be a delay with the cert and after clarifying with her that they were aware of her HIV status he then phoned the nursing home to advise them that there would be a delay with the fitness to work certificate and that he wanted to ensure that this delay did not result in the complainant missing out on the employment opportunity.  Witness for the respondent Dr T in her evidence stated that the complainant had said she needed the fitness cert as soon as possible to start work in the nursing home.

Dr A advised the hearing that the complainant had indicated to him that she had been offered the post save a requirement to provide a fitness to work certificate.   Dr A advised the hearing that he made the phone call in the complainant presence in an effort to ensure that she did not lose the job opportunity for want of a completed fitness to work certificate.

As regards his failure to complete the fitness to work cert Dr A advised the hearing that he did not have the complainants medical records and as her treating consultant was in the Mater he indicated that he would either require her records from the Mater or she could ask her consultant in the Mater to complete the form as she had indicated that she was due to see him in the next week or so.

The complainant in her evidence to the hearing stated that she was under the care of a consultant in the Mater hospital for the treatment of her HIV and that she was on anti-retroviral medication.  The complainant advised the hearing that her viral load was undetectable and that this meant that her HIV was non transmissible and so would not be a cause for concern in dealing with patients in a healthcare setting. 

The respondent acknowledged this at the hearing but also confirmed that he had no way of knowing this at the time as Dr A did not have any medical records in respect of the complainants HIV diagnosis and was not her treating doctor for this condition.

The respondent at the hearing also sought to rely on Section 4 (4) of the Equal Status Acts which provides

 “Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination”.

The respondent in advancing this argument stated that it has a duty of care to the complainant and to the patients in the nursing home and that Dr A was unable to provide a fitness to work certificate in circumstances where he had no medical records or information in relation to the complainants HIV status or its transmissibility.   Dr A stated that he was not at the time aware that the complainant’s viral load was so low as to be undetectable and therefore untransmissible.  The respondent stated that in such circumstances he could not provide a fitness to work certificate for the complainant declaring her as fit to work as a care assistant in the nursing home.

The complainant alleges that Dr A’s disclosure of her HIV status to the nursing home had ended her chances of employment with them.  Ms. K manager of the named nursing home also gave evidence at the hearing and stated that the complainant had not disclosed her HIV status in the pre-employment medical form.  Ms. K added that they have an existing member of staff who is HIV positive, but whose viral load is undetectable and so is untransmissible.  Ms. K stated that once a medical report was received indicating that the complainant had a viral load which is undetectable and so is untransmissible it would not be a barrier to her being employed by the nursing home.   Ms. K added that at the time of seeking the medical report it was for the purpose of placing the complainant on a panel and was not an offer of immediate employment.  Ms K added that she had in the months that followed in the context of reviewing the panel contacted the IPAS centre which was the contact for the complainant but had been told that the complainant had left. 

Ms. K at the hearing did not comment on the fact that the complainant had failed to disclose her HIV positive status at all in the pre-employment medical questionnaire.

Having examined the totality of the evidence adduced, I am satisfied that the respondent did not discriminate against the complainant on grounds of disability in relation to the matters detailed herein.

Having examined the totality of the evidence adduced I am satisfied that the respondent did not discriminate against the complainant on grounds of her disability.