1. DISPUTE
The dispute concerns a complaint that the Health Service Executive, Northern Area discriminated against the complainant on the disability ground contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act) when her return to work following an injury was delayed.
2. BACKGROUND
2.1 The complainant is employed as a Public Health Nurse (PHN) with the Health Service Executive, Northern Area (HSE). She sustained an injury to her left wrist following a fall on 29th March, 2003 and went on sick leave from work. On 16th May, 2003 the complainant obtained a medical certificate from the hospital treating her injury stating that, subject to certain limitations, she was fit to return to work. The respondent informed the complainant that she was considered unfit for the duties of PHN and that she could not return to work.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on 3rd March, 2004. The parties attempted unsuccessfully to resolve the matter at mediation and the complainant requested a resumption of the investigation on 12th October, 2004. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to an Equality Officer, for investigation, hearing and decision on 7th February, 2005 and for the exercise of other relevant functions of the Director under Part VII of the Act. The Equality Officer to whom the complaint had been delegated requested, for personal reasons, that the complaint be delegated to another Equality Officer and the Director delegated the complaint to Raymund Walsh on 31st January, 2006. A hearing of the complaint was held on 1st March, 2006.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant, who is right handed, states that she sustained an injury to her left wrist on 29th March, 2003 as a result of which her wrist was in plaster for about eight weeks and she was certified unfit for work. The injury is described as 'query fractured Scaphoid'. After the plaster had been removed she obtained a doctor's certificate from the hospital on 16th May, 2003 stating that she was fit to return to 'light duties i.e. office work' and that she 'may work within the realm of her injury i.e. no heavy lifting'. The complainant presented the certificate to management. The following day her superior i.e. Ms O'Neill, Assistant Director of Public Health Nursing (ADPHN) telephoned her and questioned the reference to light duties. The ADPHN put a range of sample duties to the complainant and asked her if she was fit to perform those duties. The complainant said that she was fit for most duties but that particularly heavy patients or files would need to be assessed. The ADPHN informed the complainant that there was no such instruction on the certificate and that there was no such thing as 'light duties' in her area of employment. The complainant describes her manager's manner as unhelpful and quarrelsome throughout the conversation and that she was very distressed by the treatment she received. The Director of Nursing contacted the complainant a week later and invited her to a meeting however the complainant states that she was too distressed after the earlier phone call with Ms O'Neill and 'did not want to go near the building'.
3.2 The complainant states that she had no option but to return to her doctor and obtain future medical certificates stating that she was unfit for work in order to comply with the terms of the respondent's sick pay scheme. She was placed on half-pay under the terms of the sick pay scheme on 7th July, 2003. The complainant referred herself to the respondent's occupational health department however arising from some confusion over this department's change of location, it was not until 3rd October, 2003 that she attended for an appointment whereupon she was certified fit for full duties. She returned to work on 20th October, 2003. The INO states that the period which is the subject of the this dispute is therefore from the 16th May, 2003 to 20th October, 2003. The INO states that not only did the complainant suffer a loss of earnings and annual leave entitlement but that she refused permission to pursue a course in palliative care which she had already arranged to attend, the cost of which would have been borne by the respondent along with expenses.
3.3 In its contention that the complainant's injury constituted a disability within the meaning of the Act, the INO refers to the Labour Court in Customer Perception Ltd v Leydon (1) The INO also refers to an employer's obligation under Section 16(3) of the Act to make reasonable accommodation for an employee with a disability unless this would impose disproportionate burden on the employer. In this regard the INO refers to the Labour Court in An Employer v Mr O (2) and A Health and Fitness Club v A Worker ( EED 037) where the Labour Court referred to the need for an employer to make adequate enquiries as to the needs of an employee with a disability before making a decision which would be detrimental to them and states that in this case the respondent made no such enquiries.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The HSE contends that it did not discriminate against the complainant on the disability ground and refers to Section 16(1)(b) of the Act which states "Nothing in this Act shall be construed as requiring any person to ... retain an individual in a position ... if the individual 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 ... performed". The HSE states that for the period of her absence the complainant was certified for 'light duties i.e. office work' only and that such duties would form a very small part of her role as a PHN. The HSE goes on to say that 'there was no indication that with any kind of reasonable accommodation Ms Kilbride would be capable of carrying out her substantial role'. The HSE states that Ms O'Neill spoke to Ms Kilbride to determine those duties which the complainant would be able to competently undertake and they comprised a small part of the regular duties of a PHN.
4.2 The HSE concludes that its refusal to permit Ms Kilbride to return to work on her own statement, as supplied by her medical practitioner, that she could not undertake the duties of the post did not comprise discrimination on grounds of disability in contravention of Section 6(1) of the Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the disability ground in terms of Section 6(2)(g) of the
Employment Equality Act, 1998 and 2004 and contrary to Section 8 of the Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 I am satisfied in the first instance that the complainant, at the time she presented herself as available for work in May, 2003, had impaired or imputedly impaired use of her left arm arising from her accident and that this impairment constituted a disability as defined in the Act. It is undisputed by the respondent that this impairment and the associated medical certificate of 16th May, 2003 was the reason for its refusal to allow the complainant to return to work at that time. The Act sets out in Section 16(3)(a) 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 having regard to the costs involved, the employer's resources and whether or not public funding would be available. As no measures were taken and as the complainant was refused permission to return to work at the time, I consider, having regard to Section 85A of the Act (burden of proof), that the complainant has established facts from which a presumption may be made that discriminatory treatment on the disability ground has taken place and that it is for the respondent to prove the contrary.
5.3 The respondent relies firstly on the telephone conversation between the ADPHN and the complainant in determining that the complainant was unfit to carry out the bulk of the Public Health Nurse duties. It became clear at the hearing that there were interpersonal difficulties between Ms O'Neill and the complainant when the ADPHN stated that she 'was afraid' of Ms Kilbride and Ms Kilbride for her part did not like having to deal with Ms O'Neill. Evidence was given at the hearing that both officers had started out in their careers together and that Ms O'Neill was promoted to a management position over Ms Kilbride. I believe this background adds credibility to the INO's contention that the phone conversation was confrontational in nature and that Ms Kilbride was distressed at the end of the call. Appendix I, which is self-explanatory, includes the Job Description for Public Health Nurse (source HSE) and I asked the INO representative at the hearing to identify those duties for which the
INO believed the complainant was fit and those which would require some accommodating measures on the HSE's part. The INO identified the vast majority as being within the capability of the complainant except where a particularly heavy or obese patient was concerned and said that in those circumstances assistance could easily be arranged from another nurse in the area and this would be done in the normal course of events if the need arose. In response the HSE reiterated that a significant part of the job involved the physical handling of older immobile patients, terminally ill patients, patients with a disability and young children and that Ms Kilbride was certified as unfit to carry out those duties.
5.4 I am satisfied from the evidence presented that the HSE made no substantive attempt to assess Ms Kilbride's fitness to resume duty as a PHN or to assess what, if any, accommodating measures could have been taken to facilitate her return to work when she was certified as fit to resume 'light duties'. I note that Ms Kilbride was leading her normal daily life and that she was fit to drive her car while being refused permission to resume work. I note that the Director of Nursing did invite Ms Kilbride to a meeting a week after Ms O'Neill's phone call but that Ms Kilbride declined the invitation. Had Ms Kilbride accepted this invitation then perhaps the HSE would have been in a better position to initiate such an assessment however the HSE did not advance this argument and were satisfied on foot of the medical certificate and the phone call that no further assessment was necessary. I am satisfied that the HSE's initial reaction to the complainant's request to resume work and prolonged lack of action for several months, other than reducing the complainant's salary by half under the rules of the sick pay scheme on 7th July, 2003, was directly discriminatory of the complainant on the disability ground. I note also that the complainant was denied the opportunity of pursuing a course in palliative care which she had arranged to attend because she was deemed to be on sick leave. The HSE refers to the fact that the complainant continued to submit medical certificates up until 3rd October, 2003. I attach no significance to these certificates as the complainant was being told by her employer that she was unfit for work and the rules of the sick pay scheme require that she continue to submit medical certificates if she was to be paid, even at half pay. I believe that in those circumstances a medical practitioner would have had little difficulty in issuing continuing certificates on foot of the original injury.
6. DECISION
6.1 (a) On the basis of the foregoing, I find that the respondent did discriminate against the complainant on the disability ground in terms of Section 6(2)(g) of the Employment Equality Acts, 1998 and 2004 contrary to the provisions of Section 8 of the Acts.
(b) I hereby order that the respondent take measures to place the complainant in the position that she would have been in had the discrimination not taken place and had she been permitted to return to work on the date on which she was certified as fit to return to light duties by the Mater Misericordiae Hospital i.e. 16th May, 2003, including :
(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) Compensate the complainant for the distress that she has suffered in being deprived of the opportunity to return to work with dignity at the earliest opportunity and in having to pursue a complaint of discriminatory treatment through this Tribunal. The amount of compensation ordered is €10,000 and being a compensatory payment is exempt from tax.
(v) Make arrangements for the complainant to pursue the course in palliative care which she had arranged to attend, if she so wishes, where fees and associated costs are met by the respondent in the normal manner.
Raymund Walsh
Equality Officer
12 May, 2006
APPENDIX 1
Job Description for the post of Public Health Nurse
notes
1. Customer Perception Ltd v Leydon, Labour Court( EED 0317).
2. An Employer v Mr O, Labour Court(ADE 0419)