GANNON (REPRESENTED BY SHAUN ELDER - SOLICITORS) AND MILFORD CARE CENTRE (REPRESENTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Ms. Philomena Gannon that she was discriminated against by Milford Care Centre on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of sections 8 and 16 of that Act, when it refused her request for alternative duties over a period of time, in particular on 22 November, 2001 and also denied her access to training/education opportunities.
2. BACKGROUND
2.1 The complainant was employed as a nurse with the respondent. In early 1997 she sustained an injury to her back. In early October, 1998 she suffered a further injury to her back which resulted in her absence from work from then (save for a six week period performing data collection duties in 1999) until her employment with the respondent ceased in March, 2002. The complainant submits that a number of medical reports from December, 1998 onwards suggest that she could return to light duties but despite her requests for such duties, the respondent refused to facilitate her. She contends that the respondent's behaviour in this regard constitutes discrimination of her on grounds of disability contrary to the Employment Equality Act, 1998. The complainant also contends that the respondent failed to offer or provide her with certain training or educational opportunities which were afforded other staff and that this also constitute discrimination of her contrary to the Act. The respondent rejects the complainant's assertions.
2.2 The complainant's legal representative referred a complaint on her behalf to the Office of the Director of Equality Investigations (the Equality Tribunal) on 22 April, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 23 September, 2002, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received form both parties and hearings took place on 26 May, 2003 and 29 September, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. The final piece of orrespondence in respect of the case was received by the Equality Officer on 19 April, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as a State Enrolled Nurse in March, 1983 and carried out duties associated with that post. In 1987 she became involved in the respondent's Home Care Support Service where she remained until 1989 when, due to organisational changes to the Service, she was required to cease the duties. She subsequently worked in the respondent's Bereavement Service before taking a leave of absence to pursue a course of training as a Registered General Nurse. On her return in 1994, she was employed as a Registered General Nurse in the respondent's Hospice (save for a three month assignment to the Home Care Service) until her employment ceased with the respondent in March, 2002. In early 1997 she sustained an injury to her back. In early October, 1998 she suffered a further injury to her back which resulted in her absence from work from then (save for a six week period performing data collection duties in 1999) until her employment with the respondent ceased in March, 2002.
3.2 During the period of her absence (from October, 1998 onwards) the complainant underwent several medical examinations in respect of the injury to her back (the vast majority of which were commissioned by the respondent), all of which stated she was unable to perform any duties involving lifting or bending and the complainant concurs which this diagnosis. She contends that these assessments however, state that she could perform duties which did not entail those tasks. The complainant submits that she was capable of performing duties in Home Care, Counselling or Pastoral Care at that time and states that some of the medical assessments confirm this, specifically as regards Home Care. In February, 1999 the complainant met with the Mr. Quinlan, Hospital Manager, to discuss areas of work (which did not involve lifting) which she could perform. However, the only duties which could be sourced for her comprised a part-time data collection project over a six week period. No other alternative duties were found for her and she met with Mr. Quinlan again on 22 November, 2001 to discuss this particular matter. The complainant contends that in the course of this meeting Mr. Quinlan gave an undertaking to explore the possibility of alternative duties for her and she submits that as a result of his actions the respondent is prevented from seeking to exclude events which pre-date the coming into force of the Employment Equality Act, 1998. In any event no alternative duties were made available to the complainant and the respondent terminated her employment on 4 March, 2002 due to her being medically unfit for work. The complainant contends that the failure of the respondent to source suitable alternative duties for her from 1998 to 2002 constitutes discrimination of her on grounds of disability contrary to the Employment Equality Act, 1998.
3.3 The complainant states that in 1998 (prior to her injury) she was accepted on a course to pursue a qualification of Higher Diploma in Palliative Care. However, for financial reasons she was unable to pursue it at that time and subsequently was unable to avail of the opportunity at all. The complainant states that five of the respondent's employees commenced this course in September, 2001 and she was not afforded an opportunity to do so by the respondent. She argues that the respondent's failure to offer her an opportunity to pursue this qualification constitutes discrimination of her contrary to the Act. The complainant also contends that in May, 1999 the respondent refused to act as a referee in respect of a Postgraduate Degree in Psychotherapy which she intended to pursue because she was on long-term sick leave at the time and she consequently lost the opportunity. She argues that the respondent's behaviour constitute less favourable treatment of her contrary to the Act.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's contention that it discriminated against her contrary to the Employment Equality Act, 1998 when it failed to allocate her alternative light duties from 1998 -when she sustained an injury to her back - and the time her employment ceased in March, 2002. It submits that an employer is not obliged to employ a person who is not competent and capable of performing the job s/he was employed to do and argues that section 16 of the Act, which requires an employer to provide a "reasonable accommodation" to an employee with a disability in certain circumstances, must render the employee competent and capable to perform those duties after the "special treatment or facilities" has been afforded him/her. The respondent states that the medical evidence available, with which the complainant concurs, is that she is unable to perform duties which involve lifting or bending and that if she did so she could exacerbate her condition.
4.2 The respondent states that the duties of a Registered General Nurse involve a considerable level of lifting, bending and carrying and that there is no getting away from this. It adds that the nature of the patients in its care (Hospice Care) is such that they are unable to perform many functions for themselves and this places an additional burden on nursing staff. Whilst it can provide (in a hospital environment) hoists which would reduce some of the physical strain and effort required, it can not eliminate the effort totally. It adds that if all such duties were removed from the complainant there would be little of her job left and it would impose an excessive burden on her colleagues. The respondent argues that need to perform these functions oneself is escalated in the Homecare Support Service and the complainant was not in a position to perform functions in that Service because of her condition.
4.3 The respondent submits that there is no obligation under the Employment Equality Act, 1998 to provide light duties to an employee who suffers from a disability in the context of reasonable accommodation under section 16 of the Act. It contends that such a requirement would essentially impose a condition on an employer to create a new position which would suit the capabilities of the employee and submits that this goes beyond an employer's obligations as regards reasonable accommodation under the Act. The respondent states that no other employee, either with or without a disability, had been given "light duties" during the period in question and consequently, it submits that the complainant was not less favourably treated on the grounds of her disability. The respondent adds, given the medical evidence available in respect of her injury, that there is no form of equipment or training which could be utilised which would render the complainant capable of bending and lifting and thus performing the duties associated with the job. The respondent states that the duties performed by the complainant when she worked in the Hospice Support Service between 1989 and 1991 involved Bereavement Support as distinct from Bereavement Counselling. It adds that she is not sufficiently qualified to work in the current Bereavement Service - which was established in 1991 and provides bereavement counselling as one element of its functions - as the Service is staffed by qualified social workers accredited with the National Social Work Qualifications Board. Similarly, the respondent states that she does not possess the necessary qualifications to work in Pastoral Care (accreditation requirements governed by the Healthcare Chaplaincy Board) and in addition to the fact that she would be unable to perform the physical aspects of tasks in the Home Care Support Service, the complainant does not possess the necessary Palliative Care qualifications to work in that area, which were introduced in 2000.
4.4 The respondent states that it operates a policy of encouraging all staff to avail of professional training opportunities and that it makes a contribution to the cost of such courses in certain circumstances. Applications are assessed by the respondent's personnel and Financial Department which makes a recommendation to the Manager and he makes the final decision. The criteria used for deciding which applications should receive funding are level of resources, number of applicants, relevance of course to work and continuity of service/impact of service. The respondent states that last time the complainant applied for a refund of fees was 1998, when her application was approved as regards 50% of the cost. The respondent adds that the complainant has not worked in the Home Care Support Service since 1995 (when she was temporarily posted for three months) and states that the personnel who are currently pursuing the relevant qualifications in Palliative Care to work in the Home Care Support Service applied for a refund of fees in the normal manner and were approved for funding in the normal way. The complainant did not make such an application. In the circumstances the respondent rejects the assertion that she was treated less favourably on grounds of her disability. The respondent accepts that during early 1999 the complainant's immediate Line Manager had a conversation with her concerning a reference for a course of further education. The respondent also accepts that the Line Manager indicated to the complainant that she was unsure whether or not the complainant could obtain a reference when absent on long-term sick leave and that she would raise the matter with Sister A. The complainant's Line Manager is unsure if she spoke with Sister A about the matter but Sister A has no recollection of such a conversation. The respondent argues, in any event, that these incidents took place prior to the Act coming into force and are therefore not unlawful.
5. DECISION OF THE EQUALITY OFFICER.
5.1 The issues for decision by me is whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 (i) when it failed to afford her special treatment and facilities contrary to section 16 of the Act and (ii) in the manner in which it behaved in respect of training and further education opportunities for her contrary to section 8 of the Act. In reaching my decision I have taken into account all of the submission, oral and written, made to me by the parties.
5.2 I propose to deal with the issue of reasonable accommodation first. Section 16(1) of the Employment Equality Act, 1998 provides:
"Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual --
(a) will not undertake .... the duties attached to that position or will not accept .....the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.".
Section 16(3) of the Act provides as follows:
"(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.".
Section 16(1) of the Act does not oblige an employer, inter alia, to retain in its employment any person who is not fully competent, capable and available to carry out the duties attached to a post. Section 16(3) of the Act qualifies the respondent's entitlement as regards persons with disabilities by providing that a person with a disability must be not be regarded as other than being fully competent and capable of performing the duties attached to a particular post, in circumstances where the provision of special treatment or facilities would enable the employee to do so. The statute also places an obligation on an employer to provide those special treatment or facilities (reasonable accommodation) unless its provision would give rise to a cost to the employer which exceeds a nominal cost.
5.3 In the instant case it is not disputed that the injury to the complainant's back constitutes a disability for the purposes of section 2 of the Act. Neither is it in dispute between the parties that as a result of this injury the complainant is unable to perform tasks which require her to lift or bend. The complainant was employed by the respondent as a Registered General Nurse in the Hospice immediately before she commenced her period of sick leave in October, 1998. I note she accepted that the Job Description for the post of Registered General Nurse, which was submitted by the respondent, accurately reflects the tasks of the post. On examination of this list of tasks it appears to me that there is only a very small number of them which would not involve lifting or bending to some degree in the normal course of events. I also note that given the nature of the patients which the respondent caters for there is a significant increase in the likely level of demand placed on a nurse in that area to perform duties (involving lifting and bending) which may not be required of a nurse in other areas. I am satisfied therefore that the complainant was not capable of performing the full range of duties of the post she was engaged for by the respondent because of her disability.
5.4 The next issue for consideration is whether or not the provision of special treatment or facilities would enable the complainant to perform the duties associated with her post of Registered General Nurse with the respondent. The respondent submits that it provided hoists which would reduce some of the physical strain and effort required of the complainant, but that it was unable to eliminate the effort totally. It further submits that if all such duties were removed from the complainant there would be little of her job left and it would impose an excessive burden on her colleagues. In light of my comments in the previous paragraph as regards the nature of the tasks associated with the complainant's job as a nurse I concur with the respondent's comments in this regard.
5.5 I must now consider whether or not the respondent's obligation under section 16(3) of the Act requires it to provide the complainant with alternative light duties. The respondent submits that this is not the case and I would disagree with such a sweeping statement. I am of the view that all possible alternatives must be explored, on a case by case basis, to see if an employer can facilitate a reasonable accommodation for an employee with a disability, subject of course to the nominal cost test, and that this examination might include access to alternative work arrangements or attendance patterns which are connected with the post for which the employee was originally recruited. It does not however, in my view, place an obligation on an employer to offer the employee light duties in respect of other positions in the organisation for which the employee was not originally recruited, although there is nothing to stop the parties agreeing such a course of action themselves.
5.6 I note that shortly after the complainant commenced her sick leave the respondent referred her to its company doctor (December, 1998). His opinion was that she had sustained an injury to her back and that any lifting or bending would exacerbate the problem. He went on to suggest that alternative work might be offered to the complainant and mentioned that she had expressed an interest in Home Care. He subsequently conceded that such work would also exacerbate her condition as it involved bending and lifting. The complainant's own Orthopaedic Surgeon (January, 1999) reached the conclusion that the complainant could not perform duties involving lifting or bending and added that she be might be facilitated with light/moderate duties. In April, 1999 the respondent arranged for the complainant to be examined by Mr. Brendan Deasy, Occupational Health Consultant Physician. Dr. Deasy's opinion was that the complainant was not able to perform duties which involved bending or lifting. Dr. Deasy examined the complaint on three further occasions (the final one in August, 2001) and he reached similar conclusions each time. Dr. Deasy attended the hearing and stated that based on his examination of the complainant, his knowledge of the working environment and the post and his clinical experience of such injuries, he formed the opinion she was unable to perform duties involving lifting or bending and he was unable to identify any alternative duties which the respondent might offer her.
5.7 In A Health and Fitness Club v A Worker1 (which was subsequently upheld on appeal by the Circuit Court) the Labour Court held that section 16(3) of the Act "can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of that section, of performing the duties for which s/he is employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.". The Court then went on to set out the approach it considers should be adopted in the circumstances. Firstly, the employer should establish "the factual position concerning the employee's capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer". Secondly, the employer should "consider what, if any, special treatment or facilities may be available by which the employee can become fully capable..... the cost of such special treatment and facilities must also be considered.". Thirdly, "such an enquiry could only be regarded as adequate if the employee is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.".
5.8 In the instant case the respondent had regard to a significant volume of medical evidence, all of which stated that the complainant was unable to perform duties involving lifting and bending. These were integral features of the complainant's position as a nurse. I am satisfied that there is no special treatment or facilities which the respondent could provide which would enable the complainant fully competent and capable to perform the full range of duties associated with the post for which she was employed in those circumstances. I also note the complainant accepts that she was unable to perform duties involving lifting or bending. I am therefore satisfied that the respondent did not discriminate against the complainant in terms of section 16 of the Employment Equality Act, 1998. In the interests of completeness I would add that I have examined the evidence presented to me as regards the complainant's ability to perform the other duties in the respondent organisation mentioned by her and I am satisfied that she does not possess the necessary qualifications to work in those areas - Home Care, Palliative Care, Pastoral Care and Bereavement Counselling.
5.9 I shall now deal with the complainant's assertion that the respondent discriminated against her on grounds of disability contrary to section 8(1) of the Employment Equality Act, 1998 in connection with training and further education opportunities. Section 8(1) of the Act provides:
"In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee.....".
It has been the common approach of this Tribunal and the Labour Court in the past in respect of complaints of discrimination on grounds of disability, that the complainant must, in the first instance, establish facts from which it may be presumed that discrimination took place. It is only when such a prima facie case is established that the burden shifts to the respondent to rebut the inference of discrimination.
5.10 In the instant case I note that the respondent operates a scheme of financial assistance to employees who wish to pursue relevant education or training opportunities. The last time the complainant applied for funding to pursue a course was in 1998 and her application was successful insofar as a contribution towards the cost was approved. However, for personal reasons she never took up the offer. Shortly after this she commenced a period of extended sick leave and she contends that other employees were assisted to pursue certain qualifications and that this constitute less favourable treatment of her on grounds of her disability. The respondent states that these employees applied through the normal channels and were assisted in accordance with the assessment criteria it operates. I am satisfied, on balance, that this was the case. I am also satisfied that the complainant made no such application during her absence, notwithstanding the fact that as an employee she was entitled to do so and have it evaluated along with any others. I do not agree that the respondent has an obligation to identify suitable courses/education programmes etc. and to bring them to the attention of all employees, although as an element of a human resource strategy it may well do so. In light of the foregoing I am satisfied that the complainant was not treated less favourably on grounds of disability.
5.11 The complainant also asserts that the respondent denied her an opportunity of pursuing a Postgraduate Degree in Psychotherapy in May, 1999 because her Line Manager at that time refused to act as a referee because she (the complainant) was on long-term sick leave at the time. I note the Line Manager recalled (during the course of the hearing) that she had a conversation with Ms. Gannon, that she indicated to her that she was unsure whether or not the complainant could obtain a reference when absent on long-term sick leave and that she would raise the matter with Sister A. I also note the Line Manager's comment that she is unsure if she spoke with Sister A about the matter and that Sister A has no recollection of such a conversation. Having examined the evidence available I am satisfied, on balance, that the respondent made a conscious decision not to respond to the complainant's request for a reference and that this decision was based solely or mainly on the fact that she was absent from work on long-term sick leave. This absence was occasioned by an injury to her back, which constitutes a "disability" in terms of the Employment Equality Act, 1998. It follows therefore that the respondent's actions constitute less favourable treatment of the complainant on grounds of disability contrary to the Act. I note that the incident complained of took place in early 1999 at a time which pre-dated the coming into force of the Act. Whilst the respondent's actions may be viewed as discriminatory, they were not however, unlawful. However, I would add that should such a practice operate today it would not, in my view, attract the same protection. In light of the foregoing I find that the complainant was not discriminated against on grounds of disability by the respondent in respect of this issue.
6. DECISION OF THE EQUALITY OFFICER
I find that
(i) Milford Care Centre did not discriminate against Ms. Gannon on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 16 of the Act, when it failed to afford her alternative light duties,
(ii) the complainant has failed to establish a prima facie of discrimination in respect of her contention that she was discriminated against on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in respect of training and further education opportunities for her, and
(iii) the whilst the failure of the respondent to provide the complainant with a reference to enable her purse a third level qualification because she was on long-tern sick leave constitutes less favourable treatment of her on grounds of disability, it was not unlawful as the incident pre-dated the coming into force of the Employment Equality Act, 1998.
______________________________
Vivian Jackson
Equality Officer
19 August, 2004
1 EED037