Equality Implications of Covid-19: Mental Health and Employment and the Role of Disability Discrimination Law

The coronavirus pandemic was a source of obvious distress for most of us. For some, it has caused more than distress and inconvenience – it has caused enough fear and anxiety to push them into a state of mental ill-health sufficient to meet the definition of disabled under the Employment Equality Acts. But employment equality law has had a chequered history in relation to its protection of employees with mental health issues.

 Cathal McGreal BL sets out how the law has developed over the years and how the impact of Covid-19 is likely to shine a spotlight on this sensitive area.

Please note: The session recording and subsequent paper below are taken from Legal Island's Employment Equality in Ireland Update 2020 conference on 22nd October 2020.

Introduction

Where it must now be a source of considerable concern that workers may be diagnosed with a recognised mental health condition as a result of the Covid-19 crisis, employers and workers across the industrial relations landscape need to consider the implications of the virus in the workplace.

Covid-19 raises a number of issues for employment law generally. They arise in a context of change and uncertainty, of fear and sometimes ignorance. The ruling of one tribunal, dealing with a shop worker who was afraid to come to work (she had Type 1 Diabetes and a husband in his seventies) said,

“Back in March 2020, in the confused new and strange world of an emerging pandemic there was rapidly changing and mounting concern, if not panic, among wide swathes of the population, on the Island [Isle of Man] and beyond. Increasingly during March, there was a climate of fear and uncertainty as to the implications of Covid-19. Vulnerable individuals, the wider population and the Isle of Man Government were all grappling to understand or cope with a mounting crisis. This was at a time when medical advice, whether from experts on the Island or from the United Kingdom or indeed from other countries in Europe, was far from clear or consistent – something that still prevails to an extent even now.”1

For most of us the coronavirus pandemic is a source, at the very least, of stress and considerable inconvenience. For some however, the consequences have been far more profound. It has created pervasive and insidious levels of fear and anxiety which for some have manifested in serious mental health issues and cost some workers their very lives. Many of these mental health complaints will fall within the definition of disability under the Employment Equality Acts 1998 to 2015 (‘the Acts’).

The focus of this paper is on the mental health implications of Covid-19 for workers, and how employment equality law will adapt to avoid or cope with these implications in these new factual scenarios. The paper is intended for those who are concerned with managing, advising or adjudicating upon the various issues associated with workers with mental health difficulties that are caused by, or aggravated by, the Covid- 19 crisis.

Mental illness, 2 where it is a clinical diagnosis of a recognised condition, will almost certainly be a disability within the meaning of the Employment Equality Acts 1998 to 2015 (‘the Acts’). This is not always fully appreciated and is sometimes obscured by the still relative novelty (in terms of recognition) of certain psychiatric disorders and the traditional taboos associated with mental illness.3 The law has had a chequered history in relation to its protection of employees with mental health issues.

Definition of disability and mental health issues

Mental illness, properly so called, must be distinguished from the variety of complaints which may be symptoms of mental illness, but which would not, in themselves, be considered a disability. It is important also to separate causes of illness from the illness itself. Stress is the most obvious case in point.

The word "disability" was not defined in Directive 2000/78/EC (Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (hereinafter “the Framework Directive” or “the Directive”)). In Case C- 13/05, Chacon Navas [2006] ECR 1-6467, the Court said that the concept of "disability" had to be understood as, "referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life".4

Three years after the Chacon Navas judgment was delivered, the European Community approved the United Nations Convention on the Rights of Persons with Disabilities. The provisions of that convention are now an integral part of the EU legal order: see Article 216(2) TFEU. In Case C-325/11, HK Danmark v Dansk almennyttigt Boligselskab [2013] IRLR 571, the Court of Justice said that the Framework Directive must, as far as possible, be interpreted in a manner consistent with that convention.5

This is now a well settled position in Irish employment equality law (see Nano Nagle School v Daly [2019] IESC 63; Robert Cunningham v Irish Prison Service and the Labour Court [2020] IEHC 282). Accordingly, the concept of disability must be understood as referring to,

"[A] limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers".6

The Court in HK Danmark ruled that it did not appear that the Directive was intended to cover only disabilities that were congenital or resulted from accidents, to the exclusion of those caused by illness.7 The origin of the disability was irrelevant. The Court went on to say, however, that the physical, mental or psychological impairments must be long-term.

The definition of “disability” in section 2 of the Employment Equality Acts 1998 to 2015 (‘the Acts), is more broadly drawn than that of the Framework Directive.8 Whereas in Chacon Navas the cause of the limitation concerned was limited to health problems or psychological abnormalities which were not short-term in nature, temporary conditions resulting from an accident have been held to fall within the Irish definition.9

There is no express limitation on the degree of seriousness or gravity in the definition although it has been held by the Labour Court that symptoms which present to an ‘insignificant degree’ can be disregarded.10 Not only does it include total or partial absence of mental function, it comprehends a condition, illness or disease which affects a person’s thought processes, perception or reality, emotions or judgement or which results in disturbed behaviour.1 The Act covers disabilities both present and past as well as disabilities imputed to a person and disabilities which may exist in the future. The Minister, in the course of promoting the bill, said that s.2 was wide enough to cover a history of any condition, illness or disease which had resulted in a voluntary or involuntary admission to a psychiatric facility (Committee Stage, JUS 1, No. 5, Cols. 83-85).

Specific illnesses with which we are concerned

Non-physical illness traditionally not recognised by our law

It is not long since legal recourse as against an employer for breach of duty with respect to mental health was outside of the field of actionable wrong. Injury of a non-physical nature was simply not recognised by the law. At the time, without an effective contractual remedy and without any recognition that non-physical harm was actionable before the courts, many of the consequences of the circumstances or behaviour we now regard as unlawful were simply accepted as the harsh reality of economic life. Only with the House of Lords decision of Page v Smith [1996] 1 AC 155 was the view taken that non-physical illness or suffering could come within the meaning of medical injury. The Court held with the dicta of Lord Lloyd that:

“[i]t would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law.” Ibid, p.188.

Judicial reluctance to accept as non-physical illness, mere hurt to feelings

Acceptance of whether a complaint constitutes an injury and whether it constitutes a disability is a co-aligned issue in the evolving medico-legal bases for actionable wrongs. It is now well established that claims of work-related injury may manifest in non-physical ways and that physical symptoms my by caused by non-physical illnesses. To be actionable, the complaint can be either a physical injury or a psychiatric disorder but these complaints must be clinically diagnosed.11 In Hinz v Berry [1970] 2 QB 40 the difficulty of the concept in our neighbouring jurisdiction was expressed in very clear terms:

“... no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.” (ibid, at 42–43).

Humiliation and disappointment, even in extreme form, do not constitute actionable illnesses in personal injuries litigation (Larkin v Dublin City Council [2008] 1 I.R. 391). Judicial reluctance to accept as non-physical illness, mere hurt to feelings Similarly, “high levels of stress and anxiety” arising from the plaintiff's diagnosis as MRSA positive failed to reach the standard necessary to constitute actionable damage (Hegarty v Mercy University Hospital Cork [2011] IEHC 435).

Diagnoses and the manifestations of non-physical illness are not as clear-cut as some of the more recognised kinds of physical injury. In R v Ireland ([1998] AC 147 the area was, even then, still described as “an imperfectly understood branch of medical science” (ibid, at 156). In Pickering v Microsoft Ireland Operations Ltd [2006] ELR 65 it is interesting to note that, instead of comparing the plaintiff’s plight to some other case of psychiatric injury, counsel for the plaintiff is noted as saying (probably for dramatic emphasis) the plaintiff was injured in the same way as if her hand had been cut off. The Court was at pains to point out that the medical evidence before it described depression with associated anxiety as a recognized clinical disorder. In Morgan v Staffordshire University [2002] IRLR 190 stress anxiety and depression did not amount to mental impairment under the disability discrimination prohibition in the UK, as mere notes referring to these ‘symptoms’ did not amount to well-recognised disabilities. The High Court held in Larkin v Dublin City Council [2008] 1 IR 391 that a claim in respect of emotional upset, disappointment and distress, even though it caused what was described by a doctor as an ‘acute stress reaction’, could not succeed for want of clinical diagnosis of a medical condition. The Court held that ‘upset, humiliation, sensitivity and disappointment’ requiring no treatment or medical intervention did not constitute a recognisable psychiatric condition.12 It is clear, therefore, that not only is evidence of a clinical mental health disorder or condition an essential pre-requisite for the protections afforded by the Acts, the range of potentially qualifying illness is not settled.

Illnesses which do fall within the definition of disability

One of the international standard systems for classifying all medical diseases, the International Classification of Diseases, is published and kept up to date by the World Health Organisation.13 This source includes a list of disorders under Chapter V, entitled ‘Mental and behavioural disorders’. The list is surprisingly short but does feature the complaints that commonly feature in employment sickness certificates and medical reports. What might surprise employers and mental illness sceptics is the inclusion of sections such as F43 ‘Reaction to severe stress ...’ and such illness as ‘adjustment disorder’ and ‘acute anxiety’.

There is little doubt that depression, of a significant level of severity, is a disability for the purposes of the Act. In practice it will require treatment to include medication or counselling (or referral to a psychologist or psychiatrist) as obvious indicators of diagnosis and severity. The Labour Court was asked in Government Department v A Worker EDA094 whether ‘work related depression’ could amount to a disability. Although finding that the complainant suffered from a depressive illness of a type which was a known psychiatric disability, the Labour Court said that mere unhappiness or ordinary stress or disappointment would not amount to a disability.

‘Acute anxiety’ has been held to be a disability. In XY v Matrix Shipping DEC-E2018- 05 the Equality Tribunal said,

“I am persuaded that acute anxiety is a disability within section 2 of the 1998 Act (even if it lasted only two months and only developed because of a dispute between the managing director and the Complainant.) Acute anxiety can amount to “a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.” It was for this anxiety that he was certified for sick leave and the evidence of Complainant describing panic attacks and constant sense of anxiety was compelling.

... Acute anxiety may result in symptoms that, however temporary, can be severe and disabling and I accept fully the evidence of the Complainant that unfortunately that this was his experience. I find that due to the broad wording of section 2(3) that acute anxiety comes within the wording of section 2(3) and that it constitutes a disability for the purpose of the Act.”

It is worth remembering that it is ultimately a matter of medical evidence, and not self- certification, whether a worker suffers from a disability under the Acts. This point was clearly made by the Labour Court in A Retail Company v A Worker EDA2012 which said it is not sufficient,

“ ... for the Complainant to rely on ‘stress’, however caused, as grounds for a claim to have a disability. It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court.

The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value.”

Stress, though not a mental illness, is a very significant cause of mental illness

For anyone involved in industrial relations, human resource management or employment litigation, the most common non-physical complaint that tends to feature on sick absence certificates at work must be ‘stress’. Employment lawyers are all too familiar with the implications of this word. However stress alone is not an illness. It can be a cause of illness. And the cause of the stress is a very different but related issue. Indeed, it may be the most fundamental misconception concerned with mental health issues in the workplace.

A good starting point in discussing the implications of stress is to recognise that, notwithstanding the widely misapplied use of the word to describe an illness, that the concept is not so misplaced as we might think. After all, Post Traumatic Stress Disorder (PTSD) is a very real and sometimes devastating condition that is caused by severe levels of stress. Indeed it is perhaps the best illustration, for those familiar with the sad history of shell shock victims, of a condition that took far too long to reach the status of recognised psychiatric disorder. Moreover, this is a clinical illness now fully recognised in medicine which has been deemed to be a disability under the Employment Equality Acts 1998 to 2015.14 There are other illnesses caused by stress that might be called emergent insofar as they are not so well settled in the dictionary or medical disorders. For example, one often sees in practice references to workers suffering from adjustment disorder. This is not to be confused with the far less specific and far more ambiguous ‘acute stress reaction’. ‘Workplace stress’, which seems to be the label of resort of many GPs, is clearly not sufficiently particular but it is sufficient to place an employer on enquiry. It would be a mistake to dismiss any of these complaints as pseudo-science or refuse to consider that there may be a very real issue that requires enquiry, accommodation or protective steps.

The International Classification of Diseases features the following mental illness under the title ‘Reaction to severe stress, and adjustment disorders’ (section F43 of the classification).15 The ICD states that,

“[T]his category differs from others in that it includes disorders identifiable on the basis of not only symptoms and course but also the existence of one or other of two causative influences: an exceptionally stressful life event producing an acute stress reaction, or a significant life change leading to continued unpleasant circumstances that result in an adjustment disorder. Although less severe psychosocial stress ("life events") may precipitate the onset or contribute to the presentation of a very wide range of disorders classified elsewhere in this chapter, its etiological importance is not always clear and in each case will be found to depend on individual, often idiosyncratic, vulnerability, i.e. the life events are neither necessary nor sufficient to explain the occurrence and form of the disorder. In contrast, the disorders brought together here are thought to arise always as a direct consequence of acute severe stress or continued trauma. The stressful events or the continuing unpleasant circumstances are the primary and overriding causal factor and the disorder would not have occurred without their impact. The disorders in this section can thus be regarded as maladaptive responses to severe or continued stress, in that they interfere with successful coping mechanisms and therefore lead to problems of social functioning.”16

Three specific conditions are listed under this heading:

• Acute stress reactiom. 17
• Post-traumatic stress disorder. 18
• Adjustment disorders. 19

It is important to remember that these are not conditions which lend themselves to objectively reasonable assessments of one’s work circumstances. It is not so surprising then that in Sea and Shore Safety Service Ltd v Byrne EDA143 the complainant was held to have been harassed on disability grounds where the disability was “excess anxiety and post-traumatic stress due to on-going exposure to rodents in her place of work.” Or that in A Meat Factory Worker v A Meat Processor ADJ00001504 the recognised condition was a phobia of knives.

Health and Safety Authority Guidance on Workplace Stress during Covid-19

The Health and Safety Authority (hereafter “HSA”) guidance makes absolutely clear that stress, by and of itself, is not an illness. It includes the following categorical statement: Stress is not a disease or injury, but it can lead to mental and physical ill health.”20 Helpfully, the HSA has also provided relevant guidance on work related stress (WRS) during Covid-19.21 The guidance includes the advice that,

“All stress has in common an element of panic, frustration, loss of control and negative physiological changes.”

HSA guidance makes a clear distinction between acute versus chronic stress. An acute stress reaction is described as occurring where a sudden event has sudden consequences just after the event. In contrast, chronic stressors are longer-term causes of stress, slowly unfolding and extending over periods of weeks or months.

Here the cause persists over time and the worker has no respite from it. This results in more serious psychological consequences and therefore can lead to mental health issues, psychiatric illness and/or disorder.

The HSA advises further, linking the global pandemic and stress, that:

“The Global Pandemic COVID 19 was an acute stressor but as there is no clarity yet as to when restrictions will be lifted and a vaccine developed it is now a chronic stressor. The skillsets and coping mechanisms we have developed for other shorter-term stressors are unlikely to help us as much in the longer term as they did in the short term. However, we can build upon those skillsets developed in the early days to help us going forward.”

It is advised that risk assessments which are a standard feature of the protections and obligations under the Safety Health and Welfare at Work Act 2005 are adapted to take account of the Covid-19 Crisis. It is advised that where there is a an occupational exposure health risk to COVID-19 (e.g.) healthcare, employers are required to ensure that an appropriate biological agents risk assessment is carried out. Suitable control measures should be identified and implemented to mitigate the risk of COVID-19 infection.

Ordinary workplaces (e.g. retail, offices, construction, hospitality, transport etc.) also require risk assessments which take account of Covid-19. Employers are advised to monitor up-to-date public health advice must be monitored and applied. The HSA provides two sources of specific guidance:

• Health Protection Surveillance Centre (HPSC) guidance for businesses.22
• National Standards Authority of Ireland (NSAI) guidance for businesses.23

Ultimately it is recognised that stress and stress related illness (which will inevitably consist of mental illnesses) are a significant feature and aspect of the Covid-19 Crisis as it affects the workplace.

Workers with whom we are concerned

Covid-19 has affected nearly every worker and workplace in some way. Arguably, frontline workers face the greatest risk of contracting Covid-19, and are more likely to suffer psychiatric symptoms as a result. Calls have been made across jurisdictions to acknowledge the victims of Covid-19, but also the efforts of frontline workers in combatting the virus.24 Although the term “frontline worker” has not been officially defined, a frontline worker can be loosely described as any employee providing an essential service, or a key public service. The Covid-19 crisis has greatly impacted those working in healthcare: doctors, nurses, midwives. Healthcare staff are reported to be experiencing post-traumatic stress, burn out and fatigue from dealing with the pandemic at work over the last few months.25 Other healthcare professionals working on the frontline during the pandemic could include speech and language therapists, dentists, and paediatric dentists, who have been redeployed to work in Covid-19 testing centres by the Health Service Executive. Other frontline workers include teachers. A representative of the Association of Secondary Teachers Ireland has said that striking may take place due to Covid-19 safety concerns in schools, due to issues such as physical distancing and the provision of personal protective equipment (hereafter “PPE”)26. Further, frontline workers could arguably include those working in supermarkets, and food supply chains.

When considering those most likely to be severely affected by the Covid-19 crisis, for the purposes of this paper, it seemed apt to choose as an example, the hard-pressed and sometimes underappreciated profession of nursing.

During a Special Committee on Covid-19 Response debate (Tuesday 21 July 2020) the Oireachtas Phil Ní Sheaghdha, General Secretary of the Irish Nurses and Midwives Organisation spoke on behalf of many nurses supported by some startling statistics. At the time, health workers accounted for 34% of those infected and 32% of those were nurses. Ms Ní Sheaghdha stated as follows on the subject matter of this paper,

“[Nurses] want practical post-traumatic stress support. They describe what they are now enduring as post-traumatic stress. They are saying they are fearful of the ability of their employer to keep them safe. They are also quite determined that they will work and are happy to go to work but they must be protected.”

Ms Ní Sheaghdha addressed many concerns but made her case perhaps most effectively when she called upon an INMO member, Siobhán Murphy, to speak of her own personal experience of contracting Covid-19 whilst trying to provide care for patients who were suffering from the virus in the early weeks of the crisis.27 Ms Murphy, in her testimony to the Committee said,

“I worked on a Covid-positive ward since 24 March. We were catapulted into this pandemic but we faced it with strength as a team. We are nurses who work 13-hour shifts. We work days, nights and weekends. My experience was of overexposure and burnout due to the challenge we faced already pre-Covid, with understaffing and being overwhelmed with the ever-expanding role of being a staff nurse. As one cannot put a time limit on providing care to a patient, I suppose the exposure to Covid-19 as a nurse was profound. There have been psychological and physical side effects and symptoms that I still experience today. I am still off work at the moment, as are three of my colleagues, while four colleagues required hospital treatment due to contracting Covid-19. A total of 13 out of 20 of my colleagues contracted Covid-19.”

Later in the debate Ms Murphy said,

“First, I wish to point out that I am 27 years of age with no medical, previous or underlying health conditions. I unjustifiably contracted Covid-19 in the workplace due to, as was previously said, understaffing, being completely overwhelmed with the role of the nurse, extreme burnout and overexposure to the virus. I believe I was competent in my use of PPE; we had extensive training and education on the ward from infection prevention and control in the hospital on a daily basis, as PPE did change depending on supply.

On being prepared for a second surge, as nurses we are professionals. Speaking from the perspective of my own hospital, I cannot say that any of my colleagues presented to the ward with symptoms of Covid-19. There was a very clear pathway whereby a person isolated, he or she got a swab through occupational health in work, got his or her result and subsequently was off work for 14 days if not longer. In my case, it was for 12 weeks due to symptoms. Going forward, the psychological impact of Covid-19 has been detrimental to me and to my colleagues and I am sure I can speak on behalf of the nurses of Ireland when I say that. Being given a telephone number or an app to access from home for psychological trauma, for post- traumatic stress disorder, PTSD, which was mentioned, is just not sufficient....”

Ms Murphy spoke of her physical ordeal but went on to discuss the psychological implications of the virus,

“For the first time, I experienced acute anxiety and panic attacks. I have ongoing insomnia. I can sleep for eight hours some nights but others I only sleep two to three hours, and I do not know why. I had vivid hallucinations at the start, as did some of my colleagues. That is not spoken about as a side effect. Everybody tends to speak about the physical signs and symptoms but the psychological effects, as I have said, are just as detrimental to recovery....”

It is difficult to follow these words with dry legal analysis, but discussion is needed and these issues must be the subject of analysis and reflection in terms of their legal implications.

Workplace consequences of mental health disability

This paper started with a concern that workers may be diagnosed with a recognised mental health condition as a result of the Covid-19 crisis and that the industrial relations landscape needs to consider the wider implications of the virus in the workplace. What are the workplace consequences and implication of covid-19-related mental health disability?

Employer’s duty to provide a safe system of work

Covid-19 is an ever-present threat whether at work, on the bus, in the local shop, or even at home. The insecurities caused by the crisis have deeply affected everyone. The question of liability of employers, and in particular the question of causation, will be a key focus of employers faced with personal injuries litigation. Diagnosis of a recognised illnesses referred to above is one thing. Causation can be an entirely different question.

This is not a paper on personal injuries liability.28 The central theme of the paper is the legal consequences for employers of a diagnosis of a mental health condition caused by the stress and anxiety of working in workplace where workers are exposed to the Covid-19 virus.

It should be recalled that employers are legally obliged to provide a safe system of work.29 This duty has been a feature of the law of torts for centuries and has found statutory expression in s.8(1) of the Safety Health and Welfare at Work Act 2005 which provides,

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”

The generality of s.8 deserves careful consideration but for anyone who has been concerned to see people ignoring the social distancing guidelines in public, the provision of greatest current significance in terms of the conduct of others at work seems to be s.8(2)(b) which provides that the duty set out above extends, in particular, to:

“managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”

Failure to comply with this duty can clearly be directly causative of mental illness arising from the fear and anxiety and over-all stressor of Covid-19.

Stressors – employers ignoring the obligations to test and provide health surveillance

Medical questions, analysis and surveillance may be required to protect against hazards at work and to provide a safe system of work. The absence of such surveillance may be of equal concern. It is odd that the term surveillance, a deservedly maligned term, is not necessarily a negative word in this particular context. Here it is the absence of surveillance which may be the source of stress. The protection of health and safety at work is specifically supported with various statutory duties and powers providing for medical questioning, testing and assessments. This duty to monitor employees is confirmed in section 22 of 2005 Act that provides that,

“Every employer shall ensure that health surveillance appropriate to the risks to safety health and welfare that may be incurred at the place of work identified by a risk assessment...is made available to his or her employees.”30

‘Health surveillance’ is defined in section 2 of the 2005 Act as the periodic review for the purpose of protecting health and preventing occupation-related disease, so that any adverse variations in their health that may be related to working conditions are identified as early as possible. Thus, it is clear, at least insofar as the prevention of harm is concerned, that the employer is under a duty to assess the necessity of periodic surveillance of variations in the health of employees in the particular workplace of which it has charge.31

Section 23 of the 2005 Act provides for mandatory medical assessments of a worker’s fitness to perform activities that may give rise to serious risk. The section provides as follows:

“(1) An employer may require an employee of a class or classes, as may be prescribed, to undergo an assessment by a registered medical practitioner, nominated by the employer, of his or her fitness to perform work activities referred to in subsection (2) and the employee shall co-operate with such a medical assessment.

(2) An employer shall ensure that employees undergo assessment by a registered medical practitioner of their fitness to perform work activities, as may be prescribed, which, when performed, give rise to serious risks to the safety, health and welfare of persons at work.”

It remains to be seen how the courts will interpret, in the current context, the concepts of ‘fitness to perform’ and ‘co-operate’ in section 23(1) and of ‘serious risk’ in section 23(2). The Covid-19 Crisis, in this regard, brings with both a heightened need, obvious justification and perhaps a pretext that might be abused. Psychological screening of applicants to establish sound judgment and emotional stability, may not be acceptable (Soroka v Dayton Hudson Corporation 1 Cal Rep 2d 77 (1991)). Such tests should be based on accepted and sound methodology and specifically linked to transparent objectives and the requirements of a particular job.

That these duties are not confined to action by the employer is clear from the duty on the part of the employee to report disease to the employer. The requirement placed on employees to notify the employer of disease or mental impairment is specifically referenced in s.23(4)-(5) of the 2005 Act as follows,

(4) If an employee referred to in subsection (1) becomes aware that he or she is suffering from any disease or physical or mental impairment which, should he or she perform a work activity referred to in subsection (2), would be likely to cause him or her to expose himself or herself or another person to danger or risk of danger, he or she shall immediately notify the employer concerned or a registered medical practitioner nominated by that employer who shall in turn notify the employer.

(5) Where an employer receives a notification under subsection (3) or (4), he or she shall immediately take appropriate action to comply with his or her general duties under section 8. (emphasis added)

No duty to report instance of disease to the HSA

Strangely, employers are not obliged to report an instance of Covid-19 occurring or arising in the workplace. Leaving aside the question of whether the virus was contracted at work and the worker merely showed symptoms at work, the question of the employer’s obligations to report the matter to the HSA as an ‘accident’, as it would with many other recurring hazards to workers, has attracted a significant degree of attention. A compelling case has been made for an amendment to the legislation to ensure reporting in a letter to Minister Humphries on 21 May 2020 by the General Secretary of ICTU.32

Stressors – employers failing to provided PPE

Whilst it is inevitably a case of stress to those who are not fully informed on the issues, it is a misconception that every employer must provide PPE to all workers to ensure they do not contract the virus. The Safety Health and Welfare at Work (General Application) Regulations 2007 re-transpose Directive 89/656/EC on the use of PPE aimed at protecting the safety and health of employees (see Chapter 3 of Part 2). As stated in the HSA guidance material (clearly written in a non-Covid-19 era),

“The fundamental principle enshrined in these provisions is that personal protective equipment (PPE) should only be used as a last resort.”

The safety and health of employees must be primarily safeguarded by measures to eliminate workplace risks at source, through technical or organisational means or by providing protection on a collective basis. Collective protective measures covering numbers of employees in a workplace must have priority over protective measures applying to individual employees. If these measures are not sufficient, PPE must be used to protect against the hazards that are unavoidable.

The four principles for eliminating or reducing work-related hazards are:

1. Eliminate the risk.
2. Isolate the risk.
3. Bar access to hazard zones.
4. Use PPE. 33

Fear and ignorance are doubtless mutually aggravating features of the Covid-19 Crisis. Communication, dialogue and consultation on what is and is not required must surely be seen to be amongst the reasonably practicable steps contemplated in s.8(1) of the 2005 Act.

Duty of reasonable accommodation

Where an employer is informed of the illness of the worker and that the worker is willing and capable of working with the assistance of appropriate measures, the employer will be required to consider taking appropriate steps under s.16(3) of the Employment Equality Acts to provide reasonable accommodation of the illness. The Supreme Court has recently confirmed in Nano Nagle School v Daly [2019] IESC 63 that this provision may require job redesign and accommodation even of those workers who are not able to carry out many of the functions previously thought to be ‘essential’. To what extent, then, must an employer take appropriate steps to ensure a worker can access the workplace where the worker in question is suffering from mental health illness associated with fear of contracting Covid-19?

It should be recalled that the test for reasonable accommodation – which is now contained in the dicta of McMenamin J in Nano Nagle School v Daly [2019] IESC 63 (McMenamin J paras 89 et seq.) - is really an affirmation of an older test devised in a case about a worker who suffered from anorexia, bulimia and depression. In Nano Nagle the Supreme Court did not disagree with the correctness of the test in Humphries v Westwood [2004] 15 ELR 296. Niamh Humphries was a childcare assistance who developed psychiatric issues to the extent that the employer felt she was a danger to herself and the children under her care. She succeeded in her claim due in no small part to the failure of her employer to obtain a psychiatrist opinion, or conduct a risk assessment before reaching this rather extreme position.

The test we now have is really a refined version of the test enunciated in Humphries. The test, in essence, is that an employer must:

(1) seek to understand the requirement for special treatment of facilities in the particular case, and

(2) assess whether accommodation can be reasonably achieved.

One judge in a different context characterised the approach as asking (1) is it feasible? and (2) is it reasonable?34 The Supreme Court in Nano Nagle said it would be wise also to do as advised in Westwood and engage with the worker on these issues. 35 The Court said further on the question of how far an employer must go:

“There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. ... Even within the scope of compliance, a situation may be reached where the degree of rearrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.” (Ibid, per MacMenamin J at para 106).

In A Meat Factory Worker v A Meat Processor ADJ00001504 the complainant successfully argued that failure to make work available to a general operative working in a meat factory where she was suffering from a phobia of knives. She had suffered injury when a knife used for cutting meat was accidentally dropped from a height above where she was working. It sliced through her nose causing a significant injury and some disfigurement. A psychiatric condition was also diagnosed which included an inability to work in the presence of sharp knives. The difficulty was that it was a meat factory where knives were to be found everywhere. The respondent could not even guarantee that the complainant would not come into contact with knives if she was redeployed to cleaning. Due to the manner in which her request for accommodation was dealt with, however, she succeeded before the WRC.

The Labour Court considered an appeal of a decision of the Equality Officer in Sea and Shore Safety Services Ltd v Amanda Byrne ADE1322. This case concerned a failure to provide reasonable accommodation for worker who suffered from a rat phobia. The complainant had written to her employer repeatedly stating that she was stressed and nervous about rodent infestations in her workplace. The director of the respondent company wrote to the complainant informing her that they had installed an ultrasonic rodent repeller in her office. The complainant alleged that this was entirely inadequate, and that “a large rat walked past her as she stood outside the office” at work after the respondent had informed the complainant that the problem had been dealt with. In response to this occurrence, the respondent lay ferret droppings as a means by which to deter the rats from entering the yard and buildings within which the company operated. The complainant drew the director’s attention to her phobia of rodents and stressed the seriousness of the problem for her. She suggested a preventive plan to accommodate her phobia, to enable her to return to work, including a managed pest control plan.

The complainant’s solicitor put the respondent company on notice that the complainant’s rights were being infringed by their failure to provide her with reasonable accommodation to undertake her work. The complainant was later made redundant, which the complainant alleged was a reaction to her decision to vindicate her right to reasonable accommodation under the Acts. The Court found that the complainant’s rat phobia constituted a disability and came within the meaning of section 2(e) of the Acts. The Court found that the respondent failed to provide the complainant with reasonable accommodation within the meaning of the Act.

In A Commercial Assistant v A Travel Agency ADJ-00017328 the complainant alleged before the WRC that he had been discriminated against at work because he had asthma and mental health issues, and that his mental health issues had been caused by his employer’s actions. He alleged that the respondent employer would not agree to a reasonable accommodation for his illness, which involved him sitting in a room separate to his colleagues. While this arrangement was allowed for two weeks, it was not allowed on a permanent basis.

The Adjudication Officer relied upon the Labour Court decision of A Government Department and a Worker EDA094, wherein it was stated that the definition of a disability “ought to be construed as widely and as liberally as possible consistent with fairness [...] Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense”. The Adjudication Officer found that “[w]orkplace stress is not a disability and the complainant produced no medical evidence to show that he suffered from a mental illness”. In respect of his asthma, the respondent provided the assistance the complainant requested, in the form of a heater under his desk. The Adjudication Officer noted that no other assistance was requested by the complainant. She found that the complainant had failed to establish the facts that he was suffering from a disability.

The established principle that each case turns on its own facts comes to mind, and whether or not Covid-19 related mental health issues and reasonable accommodation will be decided in favour of employees will be based on the individual circumstances of the case. A Commercial Assistant v A Travel Agency and Sea and Shore Safety Services Ltd v. Amanda Byrne discussed above dealt with whether or not the respondent employer adequately responded to the employee’s requests for reasonable accommodation. In a Covid-19 context, perhaps a failure of an employer to provide PPE or provide adequate mental health services if requested by the employee might be a factor the courts will consider in future claims.

Protocol for return to work

Many employees have been absent or largely absent from the workplace since the initial lock-down. For many it is a question of whether they will ever return to the workplace, a stressor in itself. For other, it is the question of whether it is safe to do so. This again is an illness-causing stressor.

The Department of Business, Enterprise and Innovation has published a guidance document on the issue of working safely within a covid-19 environment entitled “A Return to Work Safely Protocol”.36 Under title of “Occupational Health and Safety Measures and Recommendations” the protocol sets out the following:

“7C. MENTAL HEALTH AND WELLBEING

• Employers should put in place support for workers who may be suffering from anxiety or stress. Workers, when they return to work, may have gone through traumatic events such as the serious illness or death of a relative or friend, or be experiencing financial difficulties or problems with their personal relationships.
• Workers who are returning to the workplace after a period of isolation are likely to have concerns about the risk of infection or changes to their job due to the implementation of measures to prevent the spread of COVID-19. Employers should provide workers with information on publicly available sources of support and advice and information about the prevention and control measures taken in the workplace to reduce the risk of infection.
• Employers should ensure workers are made aware of and have access to any business provided Employee Assistance Programmes or Occupational Health service.
• A range of supports and advice is also available from the Health and Safety Authority on work related stress at: https://www.hsa.ie/eng/Topics/Workplace_Stress/. The Authority also provides a free online risk assessment tool for addressing work related stress: WorkPositive (www.workpositive.ie).
• The Government’s “In This Together Campaign” also provides information on minding one’s mental health as well as tips on staying active and connected and may be useful for use by employers and workers: https://www.gov.ie/en/campaigns/together/?referrer=/together/”

Penalising complainants and treating complaints as the product of mental illness

It is not uncommon for employers to react inappropriately to persons who make complaints at work. Whilst it is unfortunately the case that employees may become serial complainants and be wearisome, taking up valuable time and resources, it is surprisingly common to find employers responding in the extreme by requiring the worker to be assessed for mental health issues.37 This can lead to dramatic prejudice to the worker concerned but it might also illustrate a tendency to negate or explain- away complainers and their complaints on the basis that the complainant is mentally ill. This, of course, is a most unwise presentiment given that it is direct discrimination on the ground of disability to presume that complaints are unfounded because the complainant is mentally unwell.

The anxiety associated with conditions at work which expose workers to infection may also include anxieties associated with reporting the matter. The tensions between keeping a business going and protecting workers from infection are clear and obvious. Where it comes to the attention of a worker that an employer is not complying with protocols and acting in a manner placing workers in danger the worker may report the matter. The question of protected disclosures or being penalised for making a complaint then arises. Section 13(1)(h)(i) of the Safety Health and Welfare at Work Act 2005 provides that,

“An employee shall, while at work ... report to his or her employer or to any other appropriate person, as soon as practicable ... any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health Penalising complainants and treating complaints as the product of mental illness or welfare at work of the employee or that of any other person, ... of which he or she is aware.”

Section 27(3)(a) of the same Act provides that,

“An employer shall not penalise or threaten penalisation against an employee for ... acting in compliance with the relevant statutory provisions.”

A report or complaint by a worker of an employer’s failure to comply with a legal obligation (other than obligations specifically arising under a contract of and for service) or endangering the health or safety of any individual is a ‘relevant wrongdoing’ under s.5(3)(b) or s.5(3)(d) of the Protected Disclosures Act 2014.

employees, perhaps desperate to remain at work and not at all anxious to make a complaint that may lead to closure, are exposed to hazards by reason of the manner in which work continues to be carried on in spite of the Covid-19 risk.

Transparency.ie offers advice on reporting issues associated with Covid-19 in the workplace. See https://transparency.ie/helpline/COVID_19_advice_for_workers.

Conclusion

Covid-19 poses significant challenges across the employment landscape. This paper has addressed how employment equality law may address the mental health issues that will inevitably arise for frontline workers confronted with the coronavirus in their workplace. Employers must now consider whether workplace stress arising from Covid-19 amounts to a disability; whether or not employers have reasonably accommodated workers with mental health issues arising from the virus and how employers should be wary of ignoring or even penalising complainants.

Whilst employment law may have had a chequered history in relation to protecting employees with mental illnesses, the current circumstances of the Covid-19 crisis may force a realisation that it is time to accept mental illness; to accept it as a workplace risk and as a disability. Ultimately the mental health implications of the Covid-19 virus, and the corresponding protections against discrimination and victimisation, are now very real factors for consideration in human resource management, industrial relations and adjudication of claims.

--------------------------------------------------