Ethan Scally is a qualified teacher and has worked for the last four years as a project worker for the School Completion Programme in two primary schools. On 16th December Ethan was summonsed to a disciplinary hearing for informing children in his care that they had the option of removing their face masks. On 21st December he received written notification of a Final Written Warning from the Chair of the School Completion Programme. He has been informed that any further acts of misconduct in failing to follow the direction of the School Principals and Government guidance on face masks could be construed as ‘gross insubordination’ and lead to dismissal.

Ethan works with vulnerable children who have been identified as being at risk of early school leaving and he designs, develops and delivers programmes to meet their needs. Some of the programmes he rolls out are Positive Self Esteem & Expression, Social Skills, Anger Management, Behaviour Regulation, Online Safety, Transition Programme, Fears & Anxieties, Friendship and Bereavement. He explains:

“At the start of every group session I give the children a feelings chart and they talk about how they are feeling today. This activity usually enables children to get some things off their chest, including emotional pain, anxieties, stresses, and fears. It is important to note that I work with some of the most vulnerable children in Irish society, many of whom may not be able to articulate in words what they are feeling inside. A fundamental part of my work is being able to gauge a child’s feelings through non-verbal cues. A child often conveys emotional pain through their facial expression rather than through words. If a child is masked facial expression can no longer be seen and I cannot provide adequate support and help. I am no longer able to identify the emotional pain that the child may be hiding”

Ethan describes the background to the disciplinary action against him:

“On Thursday 2nd December, I told the children in my care “if you’re wearing a mask and want to take it off you can, or if you’re wearing a mask and want to leave it on you can do so either”. I said this to 10 students across 3 different groups and 9 out of 10 students took them off with great relief saying, “thank god” and complaining of headaches, being too hot, struggling to breathe properly and most were visibly uncomfortable. As a result of my actions, I was called to a disciplinary meeting. I challenged the face mask policy on several grounds including:

• There is no sufficient evidence base to demonstrate that it is necessary and proportionate.
• No risk assessment was carried out prior to the implementation of this measure. Under the Safety, Health and Welfare at Work Act 2005 every employer must carry out a risk assessment where there is a potential hazard on the premises, and risk assessment must be reviewed where “there has been significant change in the matters to which it relates to”. The potential detrimental impact that masks have on children’s social, emotional, and personal development have not been considered vis-à-vis any possible reduction in transmission of Covid 19. Schools also have a general duty of care towards pupils.
• The guidelines for primary schools to implement the face mask requirement were issued by the Department of Education by way of an unsigned and undated letter followed by a ‘frequently asked questions’ publication. It is questionable whether Minister Foley has the statutory power to make a face mask policy under the Education Act, 1998. The Act gives the Minister for Education the statutory power to make EDUCATION policies and any other policies in furtherance of the Education Act. A face mask policy is NOT educational. It is a health policy. Further, it is arguable that NPHET’s legal remit does not extend to making policies on face masks in primary school settings.
• The face mask policy contravenes Article 3 of the UN Convention on the Rights of the Child that IN ALL actions concerning children, the best interests of the child shall be a primary consideration”

Ethan concludes:

“My next step will be to appeal the Final Written Warning. I am prepared to go all the way in this, and I fully appreciate that in doing so I risk losing my job and income. I have strong principles and a passion and commitment for my work because I am truly concerned about the children in my care. No Risk Assessment has been carried out by schools prior to implementing the face mask policy to demonstrate that the benefits outweigh the potential risks, educationally, developmentally, physically, pedagogically, socially and emotionally. My ultimate duty of care is towards the children in my care and I intend to continue to challenge this policy whatever the personal consequences. I believe that it is fundamental that we protect the rights of the child in this epoch to ensure that any policy is in their best interests. I find it deeply troubling that policies are being implemented that potentially harm children on the grounds of protecting others, for example teachers or the wider community. This is wrong as a child’s welfare must always come FIRST”

If you have any queries PM us or email us on lawyersforjustice@yahoo.com

Exemptions

A medical certificate to certify that a person falls into a category listed below must be provided to the school on behalf of, any person (pupil) who claims that they are covered by the exemptions below

PRE-ACTION LETTER FOR BUSINESSES WHO REFUSE ENTRY TO CUSTOMERS WHO ARE EXEMPT FROM WEARING A MASK

Dear Business Operator/Owner _______________________________ It has been brought to our attention that your business premises at
______________________ has been operating a policy of excluding from entering said premises persons because they are not wearing face masks, despite in all cases their informing your staff members that they are exempt from wearing such face masks under the relevant legislation and attendant regulations.

This is a serious matter, involving a systematic breach of the law and serious infringement of the civil and human rights of these individuals under the Constitution and the European Convention on Human Rights (ECHR). The relevant Statutory Instrument under the Health Act 1947 (amended 2020) is No. 296/2020 and states inter alia:

Section 4. (1) A person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.

The regulations as set out in S.I. 296/2020 go on to elaborate on the procedures to be followed in the event that a citizen, having a ‘reasonable excuse’, may wish to avail of an exemption from wearing a face covering in a ‘relevant premises’, in which category your premises is included:

Section 5. (“Reasonable Excuse’) 5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if –

(a) the person cannot put on, wear or remove a face covering –
(i) because of any physical or mental illness, impairment or disability, or
(ii) without severe distress,
(b) the person needs to communicate with a person who has difficulties
communicating (in relation to speech, language or otherwise),
(c) the person removes the face covering to provide emergency assistance or
to provide care or assistance to a vulnerable person,
(d) the person removes the face covering to avoid harm or injury, or the risk of
harm or injury,
(e) the person removes the face covering in order to, and only for the time
required to, take medication,
(f) the person removes the face covering at the request of a responsible
person, or of a worker, in order to enable him or her to ascertain the person’s
age by reference to photographic identification for the purposes of the sale of
goods or services in respect of which there is a minimum age requirement or
where the responsible person, or worker, has lawful authority to verify the
person’s identity, or
(g) the person removes the face covering at the request of a responsible
person, or of a worker, in order to assist the responsible person or worker to
provide him or her with healthcare or healthcare advice.

It is clear from the above schedule that a person who informs your staff members that he or she is availing of the said exemption under any of the
headings listed from (a) to (g) above, in order to enter such premises as those under your proprietorship in order to avail of the services advertised and offered therein to the public by you is legally entitled to do so, and that any attempt to prevent them doing so is itself a breach of the law.

There is no requirement or provision under the abovementioned regulations for a person claiming an exemption from the mandatory wearing of face coverings to provide evidence or proof of any disability. Nor is there an entitlement on the part of proprietors, employees or other relevant persons to legitimately request such evidence or proof.

To be precise and clear: the regulations set down no requirement that someone claiming such an exemption produce a letter from a GP or other medical practitioner. The sole requirement is that the person him/herself simply declare a claim to such an exemption.
It is not open to the proprietors and/or employees of relevant premises to interrogate such a person concerning their declaration of an exemption:

Medical matters are subject to conditions of total confidentiality. This duty of confidentiality covers all medical records (including x-rays, lab-reports, etc.) as well as communications between patient and doctor, and is not a matter that any third party may intervene upon. There is no requirement for someone suffering from any disability to discuss this with any other person, in public or private, for any reason. Such information is personal and as such is protected under the Data Protections Act 2018.

Your attention is also drawn to the contents of the following page dealing with the wearing of face coverings in public on the gov.ie website:
https://www.gov.ie/en/publication/aac74c-guidance-on-safe-use-of-facecoverings/ (this link seems to be not available any longer)