Headnotes
Section 8, disability, injury, Section 16(3)(a), reasonable accommodation, Section 85A, burden of proof
Background
The complainant, who is employed by the respondent as a Public Health Nurse, sustained an injury to her left wrist on 29th March, 2003 as a result of which her arm was in plaster for eight weeks. After the plaster was removed she was certified as fit to resume work, subject to certain limitations i.e. light duties only. The respondent however determined that the complainant was not fit to resume her post as Public Health Nurse and refused her permission to return to work. The complainant made an appointment with the respondent's occupational health department and was certified fit to resume work on 3rd October, 2003 and resumed work on 20th October, 2003. During the period 7th July, 2003 to the date of her return to work the complainant was placed on half pay under the terms of the respondent's sick pay scheme. The complainant believes that she was discriminated against on the disability ground in being refused permission to resume work and being placed on half pay.
Conclusions of Equality Officer
The Equality Officer found that the complainant's injury constituted a disability within the meaning of the Acts and noted that Section 16(3)(a) of the Acts sets out the basis for the presumption that the complainant would have been fully competent to undertake the duties of a PHN had appropriate measures been taken by the respondent. Section 16(3)(b) requires that an employer takes such appropriate measures unless they impose a disproportionate burden on the employer. As no measures were taken and as the complainant was refused permission to return to work at the time the Equality Officer found that the complainant had established facts from which a presumption could be made that discriminatory treatment on the disability ground had taken place and that it was for the respondent to prove the contrary. The Equality Officer concluded that respondent failed to produce evidence of having adequately assessed the complainant's fitness to resume work or what, if any, measures could have been taken to facilitate her return to work.
Decision
The Equality Officer found that the respondent did discriminate against the complainant on the disability ground and ordered that the respondent (i) place the complainant on full pay with effect from the date on which her salary was reduced by half, (ii) credit the complainant with any other service related benefits including annual leave of which she was deprived, (iii) rectify the complainant's sick leave record to show that she was fit to resume work on 16th May, 2003, (iv) pay €10,000 compensation to the complainant and (v) make arrangements for the complainant to pursue a course which she had been unable to pursue while on continuing sick leave.
Cases Cited
Customer Perception Ltd v Leydon, Labour Court ( EED 0317)
An Employer v Mr O, Labour Court(ADE 0419)