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Finding of No Discrimination in WRC where Employer Did Not Allow Employee with Claustrophobia to Attend Work Without a Face Mask

In Marcin Nowak v Moriarty’s Food Markets Ltd T/A Moriarty’s Supervalu Skerries ADJ-00032391 the Complainant was medically certified as not being able to wear a face covering because of claustrophobia. He claimed he was discriminated against on the ground of disability by not being allowed to attend work and that the Respondent had failed to provide him with reasonable accommodation. He also claimed that he was discriminated against as a service user in not being allowed to attend the Respondent supermarket as a customer. He submitted complaints of discrimination to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2021 and the Equal Status Acts 2000-2018.

Facts: The Complainant commenced employment with the Respondent in April 2018, as the fruit and vegetable chargehand. In 2020 during the Covid-19 pandemic, the Complainant was required by the Respondent to wear a face mask in line with the governmental requirements in place at the time. The Complainant initially wore a mask, but claimed that he experienced panic attacks and shaking when he wore it as a result of claustrophobia. The Respondent described receiving complaints from colleagues and customers about the Complainant not wearing his mask properly. One staff member in particular had raised concerns about the Complainant as this staff member was looking after an elderly parent at home. The Complainant signed a self-declaration form that he was not able to wear a mask. Initially he did not want to give details to the Respondent for confidentiality reasons, but he subsequently provided a medical certificate to the Respondent in line with its requirements and with HSE recommendations.  

The Respondent accepted the Complainant’s medical certificate and accepted that he suffered from claustrophobia. However, the Respondent’s position was that it could not allow the Complainant to work without a mask. It explored ways it which it could provide the Complainant with reasonable accommodation and carried out a risk assessment. The Respondent also referred the Complainant to an occupational health specialist.

The Group HR Manager gave extensive evidence of the Respondent’s consideration of alternative roles for the Complainant. However, the Complainant would have also had to wear a mask in those alternative roles. The Respondent emphasised that it needed to comply with public health advice at the time and with its obligations under the Safety, Health and Welfare at Work Act. The Respondent concluded that it was unable to permit the Complainant to work without a mask.

The Complainant’s Equal Status Acts complaint related to an incident on 26th November 2020 when the Complainant attended the store with his three-year old child to get nappies. The duty manager approached him to say he needed to wear a mask, to which the Complainant replied that he had a certificate. The duty manager informed the Complainant that the same rules applied to employees and customers and asked him to leave. The Complainant argued that this refusal of service amounted to discrimination in circumstances where the Respondent was aware of his disability.

Decision: The Adjudicator, Kevin Baneham, did not uphold the complaints of discrimination under either the Employment Equality Acts or the Equal Status Acts. In his decision, he considered section 16 of the Employment Equality Act and the extent to which employers are required to provide reasonable accommodation to employees with a disability. The Adjudicator also noted that Ireland has ratified the UN Convention on the Rights of Persons with Disabilities which includes the requirement “to take all reasonable steps to ensure that reasonable accommodation is provided”. He also referred to established case law in this area, including the Supreme Court decision  in Nano Nagle School v Daly [2019] IESC 63 which addressed the requirement to provide reasonable accommodation extensively. In this case, the Supreme Court noted that an employer shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment…unless these measures would impose a disproportionate burden.”

The Adjudicator also considered the HR Raildecision of the Court of Justice of the European Union (C-485-20), where it was determined that, as a matter of EU law, reasonable accommodation requires an employer to consider other roles for the employee, but not to the extent that it imposes a disproportionate burden on the employer. The employee must also have the necessary competence and experience for the new role and there must be a vacancy that the employee can fill.

The Adjudicator also considered the emergency legislation introduced by the government (e.g. S.I. 296/2020) and the mandatory requirement for face coverings. He noted that S.I. 296/2020 was introduced to address the “immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19”. The threat to public health was “real and immediate.”

The Adjudicator referred to the “impressive” evidence provided by the Group HR Manager of the Respondent.  He was satisfied that the Respondent had “fairly and comprehensively” considered other roles for the Complainant, but none were available. The Adjudicator found that:

“[a]t this time, not wearing a face covering indoors increased the public health risk and therefore reasonable accommodation does not encompass an obligation on the employer to permit an employee work without a face covering. Being able to attend work in these circumstances without a face covering is not an ‘appropriate measure’ within the ambit of section 16 of the Employment Equality Act.”

The Adjudicator concluded that there was no breach of the obligation to provide reasonable accommodation.

Regarding the complaint under the Equal Status Acts, the Adjudicator held that in the circumstances of a public health emergency it was reasonable for the Respondent to require that a face covering be worn notwithstanding the Complainant’s medical condition. He found that “[i]n these circumstances reasonable accommodation did not mandate the respondent to allow the complainant enter the store without a face covering.” He found that there was no breach of the Equal Status Acts.

Takeaway for Employers: Employers should be aware that employees with a disability are protected under both Irish and EU equality law. There is an obligation on employers to take appropriate measures to enable those with disabilities to have access to employment. The National Disability Authority in Ireland has reported only 36% of people with a disability aged 20-64 are working, compared to 73% of people without a disability who are working in the same age range. These statistics are striking and highlight the need for these legislative protections. Employers should take all reasonable steps to provide accommodation to an employee with a disability. However, there are limits. In the HR Rail case it was stated “reasonable accommodation involves a fair balance between the needs of the person with a disability and those of the employer.”

In this case, the WRC took into consideration the public health emergency that existed at the time and the significant risk to public health. This was relevant in considering the extent of the Respondent’s obligation to provide reasonable accommodation to the Complainant. This case demonstrates that there is no “one-size-fits-all” approach – consideration has to be given not only to the needs of the person with the disability and the needs of the employer, but also to the specific circumstances.

Link –  https://www.workplacerelations.ie/en/cases/2023/january/adj-00032391.html

Authors – Tara Kelly, Jenny Wakely and Anne O’Connell

31st January 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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