Clinic ordered to pay €3,000 to man discriminated against over face mask requirement

The Workplace Relations Commission has ruled an autistic patient was discriminated against by a medical facility which told him by phone he wouldn’t have to wear a face mask but then turned him away when he arrived without one.

The claimant, who is only the second person to have an Equal Status Act complaint over the application of face mask rules during the pandemic upheld, has been awarded €3,000 in compensation.

The award is six times what was paid out in the only other Equal Status Act claim on disability-based discrimination linked to the non-wearing of a face covering.

The adjudicating officer in the case, Thomas O’Driscoll, anonymised the decision published on Thursday “due to the sensitive nature of the medical issues involved”.

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The claimant, who had a diagnosis of autism since birth, said he was referred to the clinic for an ultrasound scan on December 14th, 2020.

When the company’s call centre phoned him in advance of the appointment, he said he “specifically asked if there would be any issues in relation to him not [being] able to wear a face covering”.

He told the tribunal that his condition was such that he would be “distressed if he were required to wear a mask”, which was not contested by the respondent.

He said he was assured there would be no issue, but when he arrived for his scan he was told that the scan would not be performed because of his “inability to wear a face covering”.

The complainant said he also informed the receptionist on the day that he had autism.

He submitted in evidence a letter from the clinic repeating the grounds for refusing him service.

He said he was later accommodated at another medical facility which made an appointment for him at a “designated quiet time on a specific day” to contain the risk to other patients and staff.

The clinic, which was represented by Billy Brick of Flynn O’Driscoll Solicitors, did not the dispute the complainant’s evidence.

It accepted that the complainant had a disability and that he had notified the clinic in advance and on the day.

Mr Brick said there had been a “miscommunication between staff on what the correct policy was” and that the claimant was “unfortunately discommoded”.

A senior clinical manager who gave evidence on behalf of the clinic said staff were under “enormous pressures” due to the “unprecedented” nature of the Covid-19 pandemic at the time of the complainant’s appointment.

She said the clinic’s mask policy had evolved throughout the crisis and that this might “explain the miscommunication”.

In his decision, the adjudicating officer Mr O’Driscoll wrote that the clinic had “in effect, admitted its failure to reasonably accommodate the complainant”.

The excuse of miscommunication was “valid”, he wrote, but added: “The plain fact of the matter was that there was no attempt to facilitate the complainant despite… full knowledge of the nature of [his] disability.”

There was no evidence that the clinic had consulted with the complainant to explore how he might be accommodated, Mr O’Driscoll wrote.

He also noted that Level 3 public health controls for Covid-19 had been in place at the time of the appointment – but that the complainant was seen for his scan by another clinic soon after, when the restrictions had been increased to Level 5.

He upheld the claim of discrimination for failure to provide reasonable accommodation and awarded the patient €3,000 in compensation.

In February, the Gresham Hotel on O’Connell Street was ordered to pay James Oliver Tattan €500 in compensation after he was left upset and embarrassed by the insistence of a porter that he put on a face mask when he was medically exempt on December 16th, 2020.

Some 13 other mask discrimination claims have been rejected since the start of the year – with hundreds more awaiting adjudication.