DEC-E2005-036 Full Case Report

Ms M (Represented by the Irish Nurses' Organisation) V Health Services Executive (Represented by Michael McNamee BL, instructed by BCM Hanby Wallace, Solicitors)

1. DISPUTE
   1. This dispute concerns a claim by a complainant that she was discriminated against by the Health Services Executive on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004 when she was not permitted to return to work following absence on sick leave. She further claimed that the respondent had failed to provide her with reasonable accommodation. As the investigation involved confidential medical information relating to the complainant, her identity has been withheld in this decision.
   2. The complainant referred a claim to the Director of Equality Investigations on 5 February 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 24 March 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 24 March 2005.
      
2. SUMMARY OF THE COMPLAINANT’S CASE
   1. The complainant commenced employment on 4 December 2000 as a Clinical Nurse Manager II (CNM II) at a unit for older persons operated by the respondent. Seven months after her appointment, the complainant was certified by her GP as being unfit for work due to "bereavement reaction" (her mother had died some six months previously), and was absent from work from 29 June 2001 to 8 July 2001. She resumed work on 9 July, but two days later left work early as she was feeling unwell. On 16 July, the complainant became unwell again. The Director of Nursing contacted the Occupational Health Doctor for advice and it was agreed that the complainant should go on sick leave, that her husband should collect her from work and that an appointment should be made for her to attend her GP. She was again certified by her GP as unfit due to "bereavement reaction" and she remained on sick leave for approximately 2½ months.
   2. On 11 September, the complainant notified the Director of Nursing that she expected to be able to return to work in two weeks' time. The Director of Nursing reminded the complainant that she should attend the Occupational Health Doctor prior to her return and she did this on 27 September.
   3. The complainant resumed duty on 8 October. On 29 November the Director of Nursing requested a meeting with her, during the course of which the complainant became upset at the particular line the meeting was taking. When the Director of Nursing suggested that she might go home because of her distressed state, the complainant agreed to do so. Subsequently, the complainant was certified by her GP as suffering from depression and he referred her to a psychiatrist. The Director of Nursing wrote to the Occupational Health Doctor on 30 November, outlining concerns she had regarding certain incidents that had allegedly occurred during the three days prior to the complainant going on sick leave. The Director's letter said she was concerned because of the complainant's "lack of concentration and short-term memory deficit".
   4. The complainant attended the Occupational Health Doctor on 10 January 2002, and he subsequently sought a report from her psychiatrist indicating his views on her long-term prognosis. By letter of 17 January, the psychiatrist indicated that he expected her "to make a recovery and she should be able to return to work". The complainant attended the Occupational Health Doctor again on 23 May 2002, and he then wrote to her GP advising that there had been problems with regard to her competence and saying that the Director was not prepared to permit her resumption unless "we can indicate that she can work unsupervised". The GP was asked for a short report together with his "considered opinion about her ability to work in an unsupervised capacity".
   5. By letter of 28 May, the GP said that, on her last attendance with him, the complainant had felt herself that she was fit for work. He continued "…although she has had some emotional ups and downs in the past six months, I find it difficult on clinical grounds to dispute her own assessment…it is an entirely separate issue for me to give a judgement on her clinical competence as a nurse. If this is in question then clearly it begs a different question and must be answered in a different way."
   6. The Occupational Health Doctor wrote to the Director on 9 July, saying that if the complainant could be re-located to a position where she could be adequately supervised he had no problem about her resuming duty. The respondent's Employee Relations Manager responded to the Occupational Health Doctor on 18 September, advising that he had consulted with a number of Directors of Nursing and had concluded that such a position did not exist. He said it would be "impossible, and invidious to other staff, to provide [the complainant] with the level of supervision suggested. The potential repercussions from a breakdown of such supervision are a grave source of concern."
   7. Having exhausted her entitlement to paid sick leave, the complainant went off salary on 27 September. Her representative union continued to raise the matter with the respondent on numerous occasions, but was unable to progress matters. Efforts by the Employee Relations Manager to draw up an early retirement package on grounds of illness were not acceptable to the complainant who simply wished to return to work.
   8. The respondent wrote to the Occupational Health Doctor on 30 April 2003, informing him that it had been agreed that the complainant would be re-examined by her psychiatrist to determine "(a) Is [the complainant] fit to resume work from a current date" and "(b) In [the psychiatrist's] opinion was [the complainant] fit to resume employment in the last year". The psychiatrist notified the Occupational Health Doctor by letter of 6 June that "it appears [the complainant] is no longer clinically depressed". The Occupational Health Doctor wrote to the psychiatrist on 30 June, saying he was of the view that "it would be clearer if you stated that [the complainant] is fit or is not fit to resume duty". The psychiatrist responded by letter of 4 July, stating "I presume it is your role to state whether [the complainant] is fit to return to work or not. What I am saying …is that [she] is no longer depressed. If depression were the reason for her being unfit for work then that reason no longer exists."
   9. The complainant said it was clear from the correspondence above that the refusal to allow her return to work arose from the belief of the Director of Nursing and the respondent that the illness from which she suffered impaired her ability to carry out the duties for which she was employed. She said that, in this way, she was treated less favourably than a person who did not suffer from a similar disability, resulting in the same perceived impairment, would be treated. She described the speed with which the Director contacted the Occupational Health Doctor in both July and November 2001 as "suspicious", said that on neither occasion did the Director wait to receive medical certificates before contacting him and asserted that this raised serious questions regarding the Director's attitude towards her disability. She claimed that the Director's decision was influenced by the fact that the complainant had been employed for a relatively short period of time and had had two fairly lengthy absences as a result of her disability.
   10. The complainant referred to the Labour Court decision in A Health and Fitness Club and a Worker(Determination EED037), where the Court noted that an employer would normally be required to make adequate enquiries so as to establish the full factual position in relation to the employee's capacity. Saying the nature and extent of the enquiries would depend on the circumstances if each case, the Court said that, as a minimum, an employer should ensure he or she was in full possession of all the material facts concerning the employee's condition and should look at the medical evidence available from either the employee's doctor or obtained independently.
   11. The complainant said that in her case the respondent had made an effort to ensure it was in full possession of the material facts, but it had ignored the opinions of her GP and her psychiatrist. She said their opinions could not be clearer: she no longer suffered from depression and was fit to resume work. The complainant said it was clear that the respondent would not stop seeking medical opinion until it received the opinion it was looking for, that is that the complainant was fit to resume duty provided she was fully supervised. She said this was borne out by the fact that the respondent had rejected all the medical and expert opinion it had as to her state of health and was now seeking to have her attend a psychologist.
   12. The complainant said that the issue of her clinical competence was first raised by the Director in her letter of 30 November 2002 to the Occupational Health Doctor, wherein she alleged the complainant had made serious errors in the administration of drugs. The complainant claimed she did not become aware of the allegations until the end of 2003, when she made a request under the Freedom of Information Acts 1997 and 2003. She described this as a very worrying aspect of the entire case, in that serious allegations were made concerning her, they were never put to her, she was denied the right to refute them and that they were communicated to the Occupational Health Doctor. She described the reference to these allegations in the Occupational Health Doctor's letter to her GP as "an outright breach of confidentiality".
   13. The complainant said the respondent was in contravention of section 16 (1) of the 1998 Act, which provides
       
       Nothing in this Act shall be construed as requiring any person…to retain an individual in 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…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.
       
       The complainant said she had been certified by two expert medical practitioners as being fit to resume work and fully competent to carry out the duties for which she was employed. The respondent, therefore, could not reasonably have come to the conclusion that she was not fully competent or capable of performing the duties of her employment unless she was "adequately supervised at all times".
   14. The complainant said further that, even if she had been found to be fit to return to work but needing supervision, the respondent's refusal to provide such supervision was discriminatory. Under the provisions of section 16 (3) of the Act, an employer must do all that is reasonable to accommodate a person with a disability unless such provision would give rise to a cost, other than a nominal cost, to the employer. The complainant said the test for nominal cost was established through caselaw to be a cost relative to the size and financial turnover of the employer (An Employee v A Local Authority, Equality Officer Decision DEC-E2002-004).
   15. The complainant submitted that, should her claim be upheld, the Equality Officer should take into consideration the emotional distress and anxiety she had suffered. She said that the actions of the respondent had seriously damaged the trust and confidence she was entitled to have in her employer and constituted a breach of contract. She contended therefore that, since the respondent must have considered that this breach would cause her mental distress and emotional suffering, she was entitled to compensation. In this regard, she referred to the High Court decision Anthony O'Byrne v Dunnes Stores ([2003] ELR 297), where Smith J held "that since it must have been in the contemplation of the defendants that the breach of contract would cause mental distress to the plaintiff, the plaintiff was entitled to damages".
   16. The complainant concluded that she was seeking that the respondent be instructed to make good the loss of salary suffered by her as a result of the discriminatory treatment to which she was subjected. This would include all premia payments, loss of pension and incremental credit. She also sought appropriate compensation for the hurt, stress, humiliation and embarrassment suffered by her, and she wished her sick leave record to be amended to reflect the true period of sick leave from her point of view.
       
3. SUMMARY OF RESPONDENT ’S CASE
   1. The respondent's initial submissions in this claim argued that the complainant had produced no evidence that she suffered from a disability within the meaning of section 2 (1) of the Act, but this aspect of its case was withdrawn on the day of the hearing.
   2. The respondent described the unit as a 50-bedded unit providing primary care of the elderly, comprising 15 respite beds, two convalescent beds and 33 long stay residents. The staff complement was one Director of Nursing, four Clinical Nurse Managers II (the complainant's grade), 18 Staff Nurses (or whole time equivalents) and 12 care attendants.
   3. The respondent confirmed the initial chronology of events as listed by the complainant at 2.1 above. It said that on 16 July 2001 the complainant presented with extreme agitation and distress while on duty. She told the Director she was suffering from panic attacks and expressed her uncertainty as to what to do. This was the context in which the Director contacted the Occupational Health Doctor to seek his advice, which was followed. The complainant telephoned the Director on 11 September to apologise for her failure to submit sick leave certificates and to say she would be fit for duty in two weeks. During the course of the telephone conversation, the respondent said the complainant became upset and cried. As previously stated, the complainant was reviewed by the Occupational Health Doctor on 27 September and certified as being fit to resume duty with effect from 8 October.
   4. The respondent said that following her return the complainant exhibited a lack of concentration and short term memory deficit. The respondent said that between 26 and 29 November, the complainant made several errors involving unsigned or incorrect medication. On 29 November, the Director expressed concern at the gravity of these errors, and the respondent said the complainant became extremely emotionally upset and said how concerned she was for her own health. She said her increased mood swings and lack of concentration were worrying her, and she also had a periodic fine tremor in her right hand. Following conversation with the Director, the complainant agreed to go off duty and attend her GP.
   5. On 8 January 2002, the complainant informed the Director that she was fit to resume duty with effect from 14 January. An appointment was arranged with the Occupational Health Doctor for 9 January, and on 10 January he notified the Director he felt it was premature for the complainant to resume duty until he had received a satisfactory report from the specialist under whose care she had been. The psychiatrist's report dated 17 January indicated that the complainant had a strong family history of bipolar disorder, and he concluded that he expected her to make a recovery and to be able to return to work. On 20 February, the Occupational Health Doctor wrote to the Director informing her of the satisfactory report. He had seen the complainant in the meantime and she had indicated some apprehension about returning to work. The Occupational Health Doctor suggested that she resume duty on a phased basis, and it was agreed that she would return on 4 March with no CNM II responsibilities to enable her to reorient herself to the ward and the residents.
   6. During the following month, the Director noted several incidents of concern including the complainant giving late medication, deciding to withhold insulin from a patient, exhibiting short term memory problems and displaying an inability to focus. These matters were discussed with the complainant, who appeared to the Director to be unable to comprehend the gravity of the situation. The complainant was advised at a meeting on 21 March that she was not functioning at the level of a competent nurse. The Director held a further meeting with the complainant on 4 April, at which she raised further matters of concern. During the course of this meeting, the complainant again became extremely upset and said she felt "completely unworthy". She was asked by the Director to go off duty and see her GP urgently.
   7. The Occupational Health Doctor advised the Director on 5 April that the complainant should remain off duty until he had had an opportunity to review her. The complainant called to see the Director that afternoon and said her GP had recommended she remain off duty but she wanted to return to work. When the Director told her the Occupational Health Doctor wished to review her before she resumed, the complainant again became upset and said she couldn't do her job properly. She then asked the Director when the Assistant Director post would be advertised, saying that she felt she had special skills for that post which were not being used in her current post.
   8. Following his review of the complainant, the Occupational Health Doctor wrote to the complainant's GP in the terms described at 2.4 above, and received the response referred to at 2.5 above. At this stage the Occupational Health Doctor advised he was agreeable to her resumption provided she could be adequately supervised, and suggested that she be re-located to another post where such supervision was available. The Employee Relations Manager informed the Occupational Health Doctor on 18 September that such a post did not exist.
   9. The respondent said that it was the role of the Occupational Health Doctor to determine whether or not the complainant was fit to return to the work for which she was employed. The respondent said he was not satisfied that the letters received from the GP and the psychiatrist certified such fitness, and indeed they both indicated that such was not their role. The respondent said the complainant had been manifestly incapable of discharging her duties on the two occasions on which she returned to work following periods of sick leave. The Occupational Health Doctor had concluded that she could resume duty provided she could be adequately supervised.
   10. The Occupational Health Doctor recommended a psychological assessment be carried out to determine the complainant's competence to undertake the duties for which she was employed. The reason for this assessment was because of the respondent's recognition that the complainant's condition could be episodic in nature and susceptible to stress. The CNM II grade is a managerial position, and consequently involves certain levels of stress. While recognising that the complainant's psychiatrist had confirmed she was no longer ill, the respondent wished her to undergo specific psychological testing to measure her stress tolerance. In correspondence between July 2003 and April 2004, involving the complainant and her representative union on the one hand and the respondent on the other, several attempts were made by the respondent to reach agreement on the carrying out of the psychological assessment. Each of these attempts failed, and the complainant and her representative union continued to insist that she had been certified as fit to resume duty by both her GP and her psychiatrist.
   11. The respondent noted that the complainant had impugned the conduct of the Director in contacting the Occupational Health Doctor in both November 2001 and April 2002, describing her actions as suspicious. The respondent said that the Director acted out of concern for the safety and welfare of the complainant as she was exhibiting extreme distress. The Director requested the professional expertise of the Occupational Health Doctor in dealing with the complainant's distress. The respondent denied that the complainant was not made aware of the Director's reservations about her clinical competence. It said the issues were brought to her attention by the Director on 29 November 2001, 6 March 2002, 14 March 2002, 21 March 2002 and 4 April 2002. It said it was not possible to formally progress these issues as the complainant was on extended sick leave from 5 April 2002 onward.
   12. Regarding the provisions of section 16 (1) of the Act, the respondent said it was not satisfied that the complainant was fully competent and fully capable of undertaking the duties attached to her position as a CNM II having regard to the conditions under which those duties are or may be required to be carried out. It said the position of CNM II was a position which carried a high level of responsibility towards a vulnerable sector of the community, in common with any nursing post. The respondent denied that it had not done all that was reasonable to accommodate the needs of a person with a disability. It said the complainant had been paid during periods where no sick leave certificates were submitted and that her probationary period had been extended to take the periods of sick leave into account. It said that the complainant was advised that her return to work on 4 March 2002 could take place on a phased basis of two or three days per week, and that it had been agreed that she would not be initially required to undertake the full responsibility of a CNM II. It said it was prepared to do all that was reasonable to accommodate her by providing this special treatment even where this impacted negatively on the efficient running of the unit.
   13. The respondent stated that it had made every effort to establish the factual position in relation to the complainant's capacity to carry out the duties of her post, as set out by the Labour Court in A Health and Fitness Club and A Worker. It said this had not been possible as the complainant had refused to attend a psychologist as it had requested.
   14. The respondent rejected the complainant's argument that providing the level of supervision suggested by the Occupational Health Doctor would not give rise to a cost to it, other than a nominal cost. It said that if she were to retain her position as CNM II and be supervised, this supervision would have to be provided by a nurse at more senior level, that is CNM III or Assistant Director of Nursing. This senior nurse would have to be ward based and outside the structure of the nursing management of the unit in order to provide full-time supervision. The salary of a CNM II was €46,213 - €52,384 per annum, with pension and superannuation entitlements, and that of an Assistant Director of Nursing was €44,250 - €53,284, also with pension and superannuation entitlements. The respondent submitted that this was not a nominal cost. Furthermore, the respondent submitted that it would not be reasonable to provide such supervision given the Employee Control Restrictions issued by the Department of Health and Children to all health service providers.
   15. Regarding the complainant's arguments as to the level of compensation she should be awarded should her complaint be upheld, the respondent submitted that awards of that nature should be modest and proportionate. It submitted that insofar as the Equality Tribunal had discretion to make awards based on factors other than compensation, such discretion should be exercised sparingly and only in cases where a respondent had acted in a culpable or blameworthy manner. It submitted that its conduct in this claim did not come within this description and that an award based on principles of deterrence would be unjustified and unnecessary in all the circumstances of this case.
       
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
   1. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. It should be noted that I was unable to obtain direct evidence from the Director of Nursing, as she was ill, but a significant amount of her contemporaneous documentation such as letters and ward notes was made available to me by the respondent.
   2. The complainant alleged that the respondent discriminated against her on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability.
      
      Section8 provides that
      (1)In relation to-
      (b) conditions of employment...
      an employer shall not discriminate against an employee or prospective employee...
   3. Given the extent of the complainant's sick leave, it appears to me it would be useful to summarise her employment history at this point. She started work on 4 December 2000. She was on certified sick leave from 29 June 2001 to 8 July 2001. She went on sick leave again on 16 July 2001, returning on 8 October 2001 following review by the Occupational Health Doctor. She went on sick leave again on 29 November 2001, returning on 4 March 2002, again following review by the Occupational Health Doctor. Her final period of sick leave commenced on 5 April 2002 and she went off pay on 27 September 2002. Thus, she was on sick leave for more than half of her period of paid employment with the respondent.
   4. The complainant's original written submission made no reference to her return to work during the period 4 March - 4 April 2002. When questioned at the hearing as to the reason for this omission, the complainant's representative stated it was not strictly relevant to the complaint, as the date of the first act of alleged discrimination was being claimed as 28 May 2002 when, it was maintained, the complainant's GP certified her as fit to resume duty and the respondent refused to permit her return. In this situation, when the complainant has had several periods of sick leave for the same complaint, I consider it necessary to look at all of the absences and returns as being interconnected.
   5. The complainant's first ten-day period of sick leave concluded by her resumption of duty in the normal way. However, less than a week later on 16 July 2001, she became agitated and distressed at work, and consulted with the Director because of her uncertainty as to what to do. The complainant's submission described the Director's immediate contact with the Occupational Health Doctor as suspicious. I do not consider that the contact was anything other than a concerned supervisor seeking advice on the best way to deal with a difficult situation.
   6. The complainant also described the Director's second contact with the Occupational Health Doctor in November 2001 as suspicious. At this time, the complainant had been back in work for seven weeks, after review by the Occupational Health Doctor, following sick leave of some 2½ months. At a meeting with the Director, she again became agitated and distressed. Although her initial submission did not mention this, it emerged at the hearing of this claim that the meeting with the Director was to deal with certain performance matters about which the Director was concerned. The complainant herself accepted that she had returned to work before she was ready. It appears to me that it was appropriate for the Director to notify the Occupational Health Doctor, who had cleared the complainant to return to duty, that she had suffered a relapse and that there were concerns about her performance.
   7. The complainant was reviewed by the Occupational Health Doctor again in January 2002. Prudently, he sought a report from her psychiatrist before again sanctioning her return to duty. This report indicated the complainant should make a full recovery. Following this report, and a further review, the Occupational Health Doctor authorised her return to duty on a phased basis, with effect from 4 March, and without the management responsibilities attached to her position.
   8. The Director's ward notes of the following month noted several incidents which caused her to question the complainant's clinical competence. The complainant's submission denied that these matters were brought to her attention, but at the hearing she accepted that she had had some memory loss at the time. However, she asserted that her clinical judgement had been correct in relation to a particular issue of whether a patient should have been administered insulin. As stated, the complainant became ill again and took further sick leave from 5 April.
   9. It is the complainant's contention that the first occurrence of alleged discrimination was following the GP's letter of 28 May 2002 when she was certified as fit to resume duty. It will be noticed, however, that the GP said that he found it "difficult on clinical grounds to dispute her own assessment" that she was now well. He specifically declined to offer an opinion regarding her clinical competence. At this stage, the Occupational Health Doctor had authorised the complainant's return on two occasions, both of which had failed. It seems to me that his reluctance to permit her resumption yet again, in a circumstance where her GP would only state he did not dispute her own assessment, was entirely natural in the circumstances.
   10. The complainant stated that she was also certified by her psychiatrist in June 2003 as being fit to resume duty. I note, however, that the psychiatrist stated that she appeared to be no longer depressed. When pressed by the Occupational Health Doctor to give an opinion of her fitness to resume duty, the psychiatrist specifically declined to do so, as it was the role of the Occupational Health Doctor. Accordingly, there was no independent medical certification that the complainant was fit to resume duty. It was the role of the Occupational Health Doctor to make that judgement, and it appears to me reasonable that he would have regard to the clinical concerns of the Director during the complainant's two previous periods of resumption of duty.
   11. The Labour Court has dealt extensively with the obligations of an employer in dealing with an employee with a disability, for example in the case of A Health and Fitness Club and A Worker referred to by both parties, and more recently in An Employer and A Worker (Mr O)(Number1) (Determination No EED0410). In the former case, the Court said "In this case the employer was faced with an employee who was suffering from a disorder which had both psychiatric and physical manifestations. The respondent became concerned that she might not be suitable to remain in charge of young children. The Court accepts that an employer is entitled to take account of possible dangers occasioned by a disability from which an employee suffers (and may be obliged to do so in certain circumstances)." The Court found that the respondent had discriminated against the complainant because it "made no effort to obtain a prognosis of the claimant's condition".
   12. I am satisfied that the respondent in this claim made several efforts to ensure it had the appropriate information regarding the complainant's condition and prognosis. The Occupational Health Doctor obtained reports from her GP and her psychiatrist, reviewed the complainant himself on several occasions and sought to have her further assessed by a psychologist to facilitate her resumption of duty.
   13. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. It should be noted that I was unable to obtain direct evidence from the Director of Nursing, as she was ill, but a significant amount of her contemporaneous documentation such as letters and ward notes was made available to me by the respondent.
   14. It appears to me that the obstacle to the complainant's return to duty in this claim was not her disability in itself, but the valid concerns that the Director of Nursing had about her clinical competence. While the Director had extensive obligations to the complainant in terms of the Employment Equality Acts, she also had clinical and professional obligations to the patients in her care. The complainant had twice been authorised to resume duty, and on both occasions serious incidents had arisen.
   15. It seems to me to be unfortunate that the complainant and her representative declined to participate in the psychological assessment proposed by the respondent. That assessment was intended to specifically address the complainant's ability to cope with the normal stress attached to her post of CNM II. Had it been favourable, and the respondent had still failed to permit her resumption of duty, then the complainant may have been successful in her claim. In the absence of this assessment, the respondent was left in a situation where it had to decide whether it would permit a third unsuccessful resumption, with the attendant dangers for the patients in its care.
       
5. DECISION
   1. Based on the foregoing, I find that the respondent did not discriminate against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004.

Anne-Marie Lynch,
Equality Officer,
4 August 2004