Prison psychologist who denied she was an ‘anti-mask extremist’ fails in discrimination claim

A psychologist who denied she is an “anti-mask extremist” has failed in a discrimination claim over the Prison Service’s decision to refuse her a waiver from its pandemic rules on disability grounds.

Claire Moloney accused her bosses of withdrawing an accommodation to let her work alone and of threatening her with disciplinary action if she failed to wear a face covering – ultimately leaving her with no option except to quit an “unbearable and untenable” position in October 2021.

In her complaint under the Employment Equality Act 1998, Claire Moloney accused the Irish Prison Service of discriminating against her by requiring her “under threat of disciplinary action” to wear a surgical mask or a filter mask for 7.5 hours a day.

The Workplace Relations Commission rejected her complaint in a decision published on Thursday – ruling that Ms Moloney’s condition did not amount to a protected disability.

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At a hearing in May this year, Ms Moloney’s barrister put it to her that she had been presented as “an anti-mask extremist” in legal submissions by the prison service, a claim she denied.

She said she had written to her supervisor in October 2020 stating her “reservations” on pandemic control measures and citing “legitimate scientific documents”.

The tribunal heard staff in parts of Cork Prison had been directed to wear surgical masks in areas where they could not socially distance that same month.

She told the Workplace Relations Commission she suffers from chronic rhinusitis, with asnosmia and wheezing, along with “a long history of nasal problems” including allergies and polyps.

Her barrister, Martin Byrne BL, appearing instructed by solicitor Siobhan Daly of George F Daly & Co, said reasonable accommodation had been afforded to his client in the form of a conference room where she could work apart from other colleagues, but then withdrawn.

She took sick leave in June 2021 on stress grounds and resigned four months later, the WRC was told.

Ms Moloney said the prison service threatened to take her off the payroll if she would not “comply” – a claim disputed by the prison service, which maintained it only ever referred to the payroll when the complainant “reached the limits of her paid sick leave”.

The complainant was cross-examined on an email of April 2021 to prison authorities in which she set out her views on Covid-19 vaccination measures and referred to “apartheid legislation”.

Ms Moloney said her use of the word “apartheid” was “the literal translation from the Afrikaner word ‘apartheid’, which meant ‘apart’” and was not meant to convey the “negative connotations usually associated with the term ‘apartheid’”.

The Prison Service’s chief medical officer, Dr Thomas Donnelly, said Ms Maloney had complained of “a feeling of restricted breathing” and that she feared wearing a mask would worsen her condition during his consultation with her. He told the WRC he “stood over” his conclusion that he “did not think this would be the case”.

A GP’s report had referred to “feelings of claustrophobia when wearing a mask”, Dr Donnelly said – but said in his evidence that he “did not consider this a diagnosis of claustrophobia per se”.

Brian Conroy BL, appearing for the Prison Service instructed by Aideen O’Brien of the Chief State Solicitor’s Office, said Dr Donnelly concluded in November 2020 that Ms Maloney’s condition “did not preclude her from wearing a mask on health grounds” but that the complainant “continued to refuse to wear a mask”.

Counsel said that in the prison environment during the pandemic, there was “no reasonable accommodation available” that would have allowed the complainant do her work.

Adjudicating officer Thomas O’Driscoll wrote in his decision that Ms Moloney’s condition was not such that it held her back from “full and effective participation” at work, but that he had to consider whether the mandatory requirement to wear a face mask “aggravated her existing condition” to that of a protected disability.

Mr O’Driscoll said the CMO had been “cogent” in setting out his view that wearing a mask did not restrict Ms Moloney’s breathing or make her condition worse and that there was “little room to doubt” this view.

He found Ms Moloney had failed to establish that she had a disability as defined by the Equal Status Act and rejected her discrimination claim.