1. CLAIM
The case concerns a claim by a Care Attendant that the Health Service Executive directly discriminated against her on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to access to the post of Staff Nurse.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against as she was denied access to a post as Staff Nurse on the grounds that she had not satisfied the standards necessary relative to the functional requirements of the post because of her weight. The complainant's appointment to Staff Nurse was deferred as a result of a medical assessment by an Occupational Health Physician. On receipt of a second medical opinion, the complainant was appointed. The complainant claims that she was discriminated against on the basis of an imputed disability. The respondent denies that it discriminated against the complainant and submits that it was correct in acting upon the specialist medical advice available to it.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 26 February 2004. On 27 May 2005, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 29 June 2005 and from the respondent on 24 August 2005. A joint hearing of the claim was held on 15 March 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant was employed as a Care Attendant from March 1999 having previously worked for many years as a State Enrolled Nurse in England. Her employer paid for her to undertake a conversion course to allow her English nursing qualifications to be brought into line with standards set by An Bord Altranais. She was registered as a State Registered Nurse with An Bord Altranais in August 2003.
3.2 She was offered a post as Staff Nurse in a temporary capacity to commence in October 2003 subject to Garda and Occupational Health clearance. She attended an appointment with an Occupational Health Nurse employed by the Health Board on 25 September 2003 and on that date, the first discriminatory act took place. The Occupational Health Nurse advised that the information on the form indicated that she was morbidly obese, could not be accepted as a nurse and that an appointment would be made with the Occupational Health Physician which would probably take a month.
3.3 The complainant wrote to the Director of Human Resources on 6 October 2003 regarding the length of time it would take to see the Occupational Health Physician. In that letter, she expressed her dissatisfaction at the way she had been treated in verbal comments from the Occupational Health Nurse and her view that she was being discriminated against, particularly as she was currently in a similar position. On 6 November 2003, the Director responded without addressing her complaint about her treatment on 25 September. The letter indicated that the Occupational Health Physician advised that she had "a serious weight problem" and this "problem" was predictive of work related impairment. It further stated his opinion that there were "substantive and material reasons to justify deferring health clearance."
3.4 The complainant attended an appointment with the Occupational Health Physician on 24 November 2003. During the visit, it was suggested to her that she would have difficulty in accessing patients because of her weight and she would be unable to run fast enough should there be an emergency. It was also suggested to her that she might undergo a
course of drugs to reduce weight and that she might have her stomach stapled. At the end of the visit, the Occupational Health Physician indicated that he would not be providing health clearance. The complainant submits that this was the second discriminatory act.
3.5 The Director of Human Resources wrote to the complainant on 5 December 2003 attaching a copy of the Occupational Health Physician's report dated 17 November 2003 and copy of the Board's pre-employment Health Assessment Policy. The letter conveyed the decision that the complainant's appointment was deferred subject to her satisfying "the standards necessary for health clearance relative to the functional requirements of the post" and indicated that she would be reviewed by Occupational Health in six months. The complainant received an appointment to see a dietician at the hospital on 5 February 2004. Although the dietician could not tell the complainant who made the referral, she did confirm to the complainant that she was not morbidly obese.
3.6 The complainant received a letter from an Occupational Health Nurse Adviser dated 2nd March 2004 indicating that they had been in discussion with the Dietetics Department of the hospital. The letter pointed to the risks of extreme obesity and referred to fitness "standards" which reflect the functional requirements of the job and the ability to carry it out in a safe, effective and sustainable manner for not only the nurse but also the patients and colleagues. Since the complainant's registration with An Bord Altranais in August 2003, the complainant was frequently deployed as a Staff Nurse when they were short of staff.
3.7 The complainant's Union wrote to the complainant on 10 February 2004 pointing out that the respondent was imputing that the complainant had a disability, defined in the Act as one which exists at present, or which previously existed but no longer exists, or which may exist in the future or is imputed to a person. The letter requested the Board to cease the discriminatory practice with immediate effect and formally offer the complainant a post as a Staff Nurse. A meeting with the Board was held on 16 March 2004. At that meeting, the complainant was made aware of a report dated 19 December 2003 which states that "It would be extremely difficult for a person with this level of obesity to effectively perform chest compressions due to difficulty in
extending ones arms in front of one's chest. Likewise it could present serious difficulties in gaining sufficient access to patients to perform routine tasks." The report made no reference to the fact that these duties were already part of the work being performed by the complainant as a care attendant. During the meeting, the complainant demonstrated her ability to extend her arms to do chest compressions and the point was made that if there was a problem with access, then the Board's policy indicated that reasonable modifications should be made if required to ensure individuals are not discriminated against.
3.8 The complainant pointed to a report issued by the Occupational Health Physician on 14 April 2003 in which he states his opinion that the complainant was fit to resume her duties as a Care Attendant "without restriction" and which refers to "some minor health problems". The complainant was surprised that a "minor" problem that was having "no impact on her ability to do her duties" as a Care Attendant in April 2003 should prevent her gaining access to a promotional position in September 2003 given that the complainant had lost a considerable amount of weight in the interim. It was agreed that the complainant would be referred to another Occupational Health Physician. An appointment was made for 29th April 2004 and the report concluded that the risk was no different to her current position for which she had been deemed fit. The report also noted that as it was not currently causing her any significant problems, he could not find her unfit for the position of staff nurse.
3.9 A position was offered to the complainant on 18 June 2004 on condition that she agreed to engage with the Occupational Health Department in their endeavours to reduce or eliminate risks previously identified by them. The complainant has been employed in a temporary capacity as a Staff Nurse since 28 June 2004 and in a permanent capacity since 28 March 2005.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant attended for her first Occupational Health appointment on 25 September 2003. At the meeting and based on the Health Declaration completed by her, the complainant was informed that she was clinically obese and that based on her body-mass index she was categorised as being morbidly obese. The complainant was told that she would be referred to the Occupational Health Physician. When the Occupational Health Department examines a prospective employee, the existence of any medical condition that might impact upon the contractual requirement that employees demonstrate the capacity to render regular and efficient service is examined. The Occupational Medical Department will not automatically deem a person unfit, simply due to the fact of them having a medical condition. If a person would be competent with the aid of reasonable accommodations, this is highlighted in the medical report. Accommodations offered include assisting an employee in securing early, effective and energetic treatment for any treatable condition. This was the course of action advocated by the Occupational Health Physician.
4.2 In the case in issue, following the complainant's offer of appointment as Staff Nurse subject to Garda and Occupational Health clearance, the complainant's Health Declaration form was received by the Occupational Health Department. Consequently on a review of the contents, the complainant was requested to attend with the Occupational Health Nurse on 25 September 2003. During the consultation, the complainant's BMI was calculated on the basis of the details given in the form and the results showed that she had a significant weight problem. The complainant was perceived to have made little progress to address the health issues previously identified to her, (following an 11 and a half week absence due to musculoskeletal injury in her role as Attendant) and the Occupational Health Nurse felt that referral to the Occupational Health Physician was appropriate.
4.3 The complainant attended the Occupational Health Physician on 24 November 2003. The Occupational Health Physician outlined his concerns to the complainant and provided her with information aimed at supporting her in addressing the health issues identified during the previous 8 months. The Occupational Health Physician's report of the consultation indicates that the complainant would have an increased risk of absence related to illness. The report further states that she had significant unaddressed health problems predictive of work related disability and serious risk to personal health. He arranged for Occupational Health follow up in 8 weeks and referral to a dietician. In view of this, the complainant's appointment as Staff Nurse was deferred. The complainant and her representative met with the Corporate Employee Relations Manager on 16 March 2004 and it was agreed to refer the complainant for a second independent medical assessment.
4.4 The respondent does not accept the complainant's version of the meeting with the Occupational Health nurse on 25 September 2003. The Occupational Health Nurse Advisor submits that the complainant was treated with respect and dignity throughout the consultation. The complainant was informed that she was morbidly obese, that health clearance could not be granted and that she would be referred to the Occupational Health Physician. The Occupational Health Physician submits that at the meeting on 24 November 2003, the complainant had significant unaddressed health problems and that he had genuine concerns regarding the complainant's capability to perform some aspects of the nurse role. He found the complainant resistive to his attempts to engage with her regarding mitigation strategies. He deferred a decision on her fitness for the position in anticipation of her being able to meet the health requirements at her next review. The complainant has consistently refused to acknowledge her unresolved health issues and to engage with Occupational Health Professionals to agree a plan to mitigate the risks identified. The complainant failed to keep two follow-up appointments with Occupational Health Professionals following her consultation with the Occupational Health Physician in April 2003. She also failed to attend for follow up in May 2004 at which appointment; she was to be given a Hepatitis B vaccination. Due to her lack of engagement to date, a composite functional assessment of the complainant's health status has never been completed.
4.5 The Director of Human Resources did not refuse to appoint the complainant. He took a decision to defer the appointment, based on expert medical opinion, pending her engagement with the Occupational Health Department. When the complainant met with the Corporate Employee Relations Manager in March 2004, management proposed that a second medical opinion be sought. The complainant agreed to this. On the basis of the subsequent report, management took the decision to appoint the complainant as a Staff Nurse. However, as there were a number of unresolved health issues, the appointment was made subject to the complainant's agreement to engage with Occupational Health Professionals in order to address her unresolved health issues. The complainant has not engaged with the Occupational Health Department to date. The North Eastern Health Board proceeded to appoint the complainant to the whole-time permanent pensionable post of Staff Nurse at the hospital. The complainant alleges that she was not issued with particulars of the functional requirements of the post. However, the Occupational Health Department did advise the complainant of what was required of her in the context of mitigating and minimising health risks associated with her medical condition. The respondent submits that the complainant was not appointed to a nursing department as a Staff Nurse prior to appointment as same. The complainant was on occasion assigned to other departments as an additional Care Attendant.
4.6 The respondent contends that the complainant was not discriminated against by virtue of the actions taken culminating in her appointment to the post of Staff Nurse.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges that the respondent discriminated against her on the disability ground in relation to access to the post of Staff Nurse. In this case, I will consider whether the respondent directly discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in the manner in which it dealt with her appointment to Staff Nurse. I will consider (i) whether the respondent imputed a disability to the complainant, (ii) whether the complainant has established a prima facie
case of discrimination on the disability ground and (iii) in the event that she has so established a case, whether the respondent has rebutted the complainant's claim. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Claim of discrimination on the disability ground:
5.2 Section 6(1) of the Employment Equality Acts 1998-2004 provides that:
Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
5.3 "Disability" is defined in section 2 as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
Issue whether respondent imputed a disability to the complainant
5.4 The complainant in any case of disability discrimination would firstly have to prove that she has/had a disability or one which may exist in the future or is imputed to a person within the meaning of the Act and I will consider this issue first. On 22 October 2003 and on 17 November 2003, the Occupational Health Physician wrote to the Director of Human Resources along similar lines. On the latter date, he stated in relation to the complainant's weight "None-the-less this condition does pose significant risk to [Ms. A's] health and is an independent predictor of work related disability." The complainant was advised by letter dated 6 November 2003 from the Director of Human Resources that the Occupational Health Physician advised that "you have a serious weight problem which has been raised with you in order that you might address the significant risk to your own health and also the fact that this problem is predictive of work related impairment." The respondent submitted in its written submission that obesity per se does not come within the definition of disability in the Act and that the complainant's "medical condition is not a disability per se." The complainant is not submitting that obesity is a disability but submits that the respondent imputed that she had a disability arising from being overweight or that she may develop a disability in the future. In the circumstances and without making a finding as to whether obesity falls within the meaning of disability as defined by the Act, I find that the respondent imputed a disability to the claimant within the meaning of section 2(1) of the Act as a consequence of the issues with her weight.
Establishing a prima facie case of discrimination on the disability ground
5.5 The next issue for consideration is whether the complainant has established a prima facie case of direct discrimination on the disability ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "Establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the
complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.6 More recently, the Labour Court has stated in relation to the burden of proof in a case concerning a dismissal on the disability ground:
"It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2001). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove on the contrary on the balance of probabilities." (2)
5.7 When the complainant wrote to the Director of Human Resources on 6 October 2003 following her appointment with the Occupational Health Nurse, the Director asked for a report from the Occupational Health Physician to enable him to deal with the issues raised in the complainant's letter. The letter from the Occupational Health Physician to the Director of Human Resources dated 22 October 2003 in response indicated that he considered that the complainant had "a serious weight problem" which was "predictive of work related disability and potentially severe functional impairment" and that the complainant's health issues were "substantive and material reasons to justify deferring health clearance." By letter dated 6 November 2003, the complainant was advised by the Director of Human Resources that health clearance in relation to the Staff Nurse post was deferred. The respondent in the case in issue imputed a disability to the complainant and consequently deferred her appointment as a Staff Nurse. On the basis that the complainant's health clearance and appointment were deferred on the grounds of an imputed disability arising from her weight, I find that the facts give rise to a presumption of discrimination and the complainant has established a prima facie case of discrimination on the disability ground.
5.8 Recently, the Labour Court has stated in relation to discrimination on the disability ground:
"The proscription of discrimination on grounds of disability is not absolute. If a person is, by reason of a disability, unable to fully undertake the duties of a position they may, in accordance with section 16(1) of the Act, be lawfully refused employment or promotion into that position (see A Worker v An Employer 16 [2005] ELR 159). The applicability of that qualification is itself restricted by the provision of Section 16(3) of the Act which, at the time material to the instant case provided: -
(3) (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 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.
Subsection (3), paragraph (b), of Section 16 of the Act imposes a duty on employers to accommodate the needs of an employee with a disability. As was pointed out by the Court in An Employer v A Worker, the provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in or advance in employment. The effect of an employer's failure to fulfil the duty imposed by Section 16(3)(b) of the Act is to negate any defence which they might otherwise have under Section 16(1) in a claim of discrimination on the disability ground. (see also A Worker (Mr. O) v An Employer 16 [2005] ELR 113).
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability." (3)
5.9 In A Health and Fitness Club -v- A Worker (4) , the Labour Court in a discriminatory dismissal case considered that the "nature and extent of the enquiries which an employer should make will depend on the circumstances of each case." It held:
"In practical terms this will normally require a two-stage enquiry, which looks firstly at 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 either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.10 In accordance with the principles enunciated in A Health and Fitness Club -v- A Worker (5), the respondent should firstly have considered the factual position concerning the complainant's capability including the degree of impairment arising from the imputed disability and the likely duration. This would involve looking at the medical evidence available to the respondent either from the employee's doctors or obtained independently. Consequent on the information contained in the Health Declaration form submitted to the Occupational Health Department, the complainant was referred to an Occupational Health Nurse on 25 September 2003. She was then referred to the Occupational Health Physician and she attended him on 24 November 2003. However, the Occupational Health Physician's report to the Director of Human Resources dated 22 October 2003 in response to the complainant's letter of 6 October 2003 indicated that the complainant had a serious weight problem, that the health problem was predictive of work related disability and potentially severe functional impairment. That letter also stated that Occupational Health considered the health issues to be substantive and material reasons to justify deferring health clearance for the complainant. The complainant was advised by letter dated 6 November 2003 from the Director of Human Resources of the decision to defer health clearance due to her weight problem which was predictive of work related impairment. The decision to defer health clearance was made prior to the complainant's appointment with the Occupational Health Physician and appears to have been made on foot of the complainant's Health Declaration form and/or on foot of the complainant's appointment with the Occupational Health Physician some six months previously in April when she attended him following an eleven and a half week absence from work. The precise nature of the complainant's imputed disability, the degree of impairment and the likely duration were not defined or communicated to the complainant or discussed with her. The complainant was therefore, not allowed a full opportunity to participate in the process.
5.11 The Occupational Health Physician's next letter dated 17 November 2003 to the Director of Human Resources indicated that a decision had been deferred on the complainant's fitness for the position in anticipation of her being able to meet the health requirements for a Staff Nurse at next review. The letter also states "our observations confirm that [Ms. A] has a significant weight problem...." Again, that letter was prior to the complainant's appointment with the Occupational Health Physician. The complainant was advised by letter dated 5 December 2003 from the Director of Human Resources that "I understand that Occupational Health have offered to review your progress in relation to the normal health standards for applicants for a staff nurse position in approximately six months or earlier if sufficient progress has been achieved." However, it does not appear that the complainant was, at any stage, informed what constituted sufficient progress and the letter from the Occupational Health Physician does not refer to a review in approximately six months and just refers to the next review. A letter from the HR Department to the Occupational Health Physician dated 15 December 2003 refers to the complainant seeking the standard weight requirements for posts, in particular, that of Staff Nurse for the purposes of assisting her in identifying the standard for which she should aim. Indeed, in February 2005, some time after her appointment to Staff Nurse in a temporary capacity (June 2004), it appears that the complainant was still trying to establish the standards to work towards in order to reduce her health risks. A letter from a Senior Administrative Officer to the complainant dated 22 February 2005 refers to the complainant's request for standards to work towards reducing her health risks as identified by the Occupational Health Department in October 2003. That letter states that the Occupational Health Physician suggests that it would be reasonable for health care workers to demonstrate a regular moderate level of physical activity in their personal life and to reduce their weight level to below the threshold BMI of 30 and to show a level of aerobic capacity within the average to high average category.
5.12 The complainant submits that it was not at all made clear to her what her target weight should be. She submitted that she was not weighed by the Occupational Health Physician on her visit to him in November 2003. She submitted that she had made significant progress with weight loss since she first attended him in April 2003 following an absence from work. She was weighed by the Dietician in February 2004, however, again, she was not given a target weight. She submitted that she was continuing to make progress with her weight during the period right through to her appointment with the independent Health Physician. Her statement on this matter was not contradicted by the respondent.
5.13 In February 2004, the complainant's representative wrote to the Director of Human Resources in relation to the decision to defer the appointment and stated that it was its view that the respondent was in breach of the Employment Equality Act, 1998. Subsequently, on 16 March 2004, the complainant and her union representative met with the Corporate Employee Relations Manager. At that meeting, it was agreed to refer the complainant for a second independent medical assessment. The complainant submitted that it was only at that meeting on 16 March 2004 that she became aware of a letter from the Occupational Health Physician to Human Resources dated 19 December 2003 indicating that someone with the complainant's level of obesity would have serious difficulties performing a number of tasks associated with the Staff Nurse position and detailing some of those tasks. I note that that letter refers to the referral to the Occupational Health Physician in April 2003 and states that "The risks of extreme obesity were highlighted and implications for ergonomic problems and work-related disability were pointed out."
5.14 A second medical opinion by a Specialist in Occupational Health Medicine following an appointment with the complainant on 13 May 2004 indicated that he could not find the complainant unfit for the position of Staff Nurse. He stated "....., given that she has been deemed fit for her current position, and that this is currently not causing her any significant problems I cannot find her unfit for the position of staff nurse." Despite reservations by the Occupational Health Physician who provided the first report and that the complainant never had a pre-placement health assessment with Occupational Health prior to her appointment as Care Attendant, management elected to proceed with the appointment of the complainant. Management did, however, state that the offer of appointment was conditional upon the complainant's agreement to "engage with the Occupational Health Department in their endeavours to reduce or eliminate the risks to your health previously outlined in correspondence from [Dr. B], Occupational Health Physician." However, the Occupational Health Physician did not at any stage communicate directly in writing with the complainant in relation to her situation. Whilst the risk to the complainant's health was referred to in the letter from the Director of Human Resources to the complainant dated 6 November 2003, it does not appear that those risks were specifically identified to her in writing until she received a letter from the Occupational Health Nurse Adviser dated 2 March 2004. That letter states that "Nursing is one of the top ten occupations most at risk for Musculo-Skeletal Disorders (M.S.D), and obesity is an independent risk factor.
5.15 The respondent deferred medical clearance for the complainant prior to her appointment with the Occupational Health Physician on 24 November 2003. I have not had sight of any report to Human Resources by the Occupational Health Physician arising from that particular appointment with the complainant. The complainant in her written submission states that at that appointment, it was suggested to her that she would have difficulty in accessing patients because of her weight and that she would be unable to run fast enough should there be an emergency. She also submits that it was suggested to her that she should undergo a course of drugs to reduce weight and that she might have her stomach stapled. It appears that the respondent did not discuss the situation with the complainant and it did not carry out an assessment of the risks associated with her being overweight and communicate them to her prior to its decision to defer health clearance which was made prior to her appointment with the Occupational Health Physician.
5.16 There appears to have been a continuing deferral of health clearance without any guidance on what the complainant needed to achieve until the complainant raised the issue of discrimination with the respondent. Whilst some basic assessment of the complainant's health took place and a medical referral was made, (the appointment took place after a decision to defer health clearance was made), there does not appear to have been any thorough assessment and communication with the complainant in relation to deferral and I can find no evidence that the complainant was advised of a target weight. The respondent in this case deferred health clearance in October 2003 prior to the complainant's medical appointment with the Occupational Health Physician and the deferral continued for a period of five months before it was agreed in March 2004 to refer the complainant to another Occupational Health Physician. The Labour Court has stated "The scope of an employer's duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity........"(6). When the respondent considered that the complainant was not fully capable of discharging the functions of the Staff Nurse role, it did not proceed to consider what if any special treatment or facilities were available by which she could become fully capable. Accordingly, I find in the circumstances of this case that the respondent has not rebutted the complainant's claim of discrimination on the disability ground.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to appointment to the post of Staff Nurse.
6.2 In accordance with section 82 of the Employment Equality Acts 1998-2004, I hereby order that the respondent:
(i) pay the complainant the sum of €3000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination in the appointment process for the post of Staff Nurse and does not include any element relating to remuneration;
(ii) appoint the complainant to the post of Staff Nurse in a temporary capacity with effect from 22 October 2003 (being the initial date when health clearance was deferred) and make the necessary salary adjustments (this figure which refers to remuneration will be subject to tax).
__________________
Mary Rogerson
Equality Officer
10 April 2006
notes
(1) DEE011 15 February 2001
(2) Valerie Cascella and Antonio Cascella t/a Donatellos Restaurant v. A Worker EED043 9 February 2004
(3) A Government Department v An Employee ADE/05/16 Determination No: EDA061 30 January 2006
(4) EED037 18 February 2003
(5) ED/02/59 Determination No: 037 18 February 2003
(6) A Government Department v. An Employee Determination No: EDA061 30 January 2006