Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2013-111
A Nurse
(Represented by Jim Waters & Associates)
v
Health Service Executive
(Represented by Byrne Wallace Solicitors)
Date of Issue: 12 September 2013
File No.EE/2011/027, EE/2012/190
Keywords: Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment in her working conditions by the HSE (hereinafter "the respondent") on the grounds of disability in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. She further alleges that the respondent failed to provide her with reasonable accommodation in terms of Section 16 of the Acts. She also alleges that she was constructively discriminatorily dismissed as a result of the alleged discriminatory treatment.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 20 January 2011 under the Employment Equality Acts. On 16 January, 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 14 May 2013 and a further day's hearing was held on 5 June 2013.
2. Summary of the complainant's case
2.1 The complainant is a nurse with 35 years experience and in excess of 20 years as an employee of the Health Service Executive and its predecessors. At the time that her employment ended, she was employed as a senior staff nurse. In late 2002, the complainant was diagnosed with breast cancer (left) having suffered from breast cancer (right) in 1994. She developed lymphoedema affecting both her arms following surgical intervention to treat her serious original condition but the lymphoedema remained as a consequence. As a result of her condition, she developed acute and chronic health difficulties which were stable subject to ongoing management. Up to September 2009, she worked in a community residential house being Unit A. The users of this service can have learning, behavioural, social, intellectual and/or medical and psychiatric needs or disabilities. However, those users were of a relatively placid disposition. It involved the care of six higher functioning female patients and assisting them with independent living. In or around April/May 2009, the complainant states that she started to experience negativity from the Assistant Director of Nursing at Unit A. As a result she took some sick leave which her GP stated was due to work related stress. She states that she experienced bullying by the Assistant Director of Nursing. In September 2009, the complainant was informed that she was being moved from her location at Unit A in the community where she worked the previous 11 years and instead was being transferred to Unit B, to a locked ward environment. She states that she was of the view that she was being moved as a result of making a verbal complaint of bullying against the Assistant Director of Nursing to the Director of Nursing. There were four staff moved in the re-organisation, however the other three staff were moved to safe houses in the community. She was moved from a safe house to a locked ward which required a male carer to be on duty at all times. The complainant raised her serious concerns in this regard where due to her existing lymphoedema, she was concerned that working with users of such a facility could inadvertently cause injury to her. This was supported by a letter to management by the complainant's oncologist advising against the move and from her GP. The complainant herself voiced concerns to management and through her trade union official warned against the move on 13 separate occasions.
2.2 The complainant met Dr. D (Occupational Health Physician on behalf of the HSE) regarding her concerns that her disability would not be protected by the move to Unit B. The complainant's solicitor submits that Dr. D failed to engage with the complainant and instead pushed the complainant towards retiring on grounds of ill-health and confirmed this in a letter to management dated 23 September 2009. The complainant requested a second opinion as she was of the view that, having worked with this disability in a frontline position for in excess of ten years, she was fit to continue working. She was referred to Dr. N (Consultant Occupational Physician with the Occupational Health Department of the HSE). In the context of the proposed move, in a letter dated 28 October 2009, Dr. N wrote to Ms. K, (Director of Nursing) stating that the complainant had "significant disability following breast mitosis which leaves her with swelling in her upper arms (L>R) and she is at risk from trauma or repetitive strenuous work involving her upper limbs which does not appear to be a requirement of her present post." He went on to conclude that "On balance therefore, I see no absolute medical contraindication to why this lady can't continue in her post presuming that she has been providing acceptable service in this role for ten years. She does have underlying health problems and vulnerabilities which she perceives could be aggravated or destabilised with the new role and the evaluation of essential functions of the new role will allow comparison of these issues between issues between the posts on an objective and transparent basis... I am happy to comment further if appropriate on her fitness for the new role once these assessments have been complete." The complainant's solicitor submits that Dr. N was confirming that there was no reason to relocate the complainant but if same were to be done that proper risk assessments should be carried out. In a letter dated 15 September 2009, her Consultant Oncologist Mr. C stated"Ms. G would appear to be managing quite well doing her job as she is currently practicing it, any change in her job structure would create a certain amount of stress which would not be good for Ms. G's full recovery both in the short term and long term." Even as far back as April 2004, Dr. D (Occupational Consultant with the respondent) in a letter to the (Assistant Director of Nursing) stated "I would not find any specific severe disability which would prevent Ms. G undertaking her duty roster in (Unit A), day or night roster."
2.3 The complainant's solicitor argues that the complainant's concerns were not treated sufficiently seriously and the complainant's Consultant Oncologist's opinion and the respondent's Occupational Consultant's views were disregarded. The complainant's solicitor states that a risk assessment report was produced internally by Ms. K, Director of Nursing, a person without appropriate knowledge of the complainant's medical condition and risks associated thereto. The complainant's solicitor submits that Ms. K, who conducted the risk assessment, was not suitably or appropriately qualified to conduct such an assessment and the job analysis form she completed was generic in nature and did not home in on the complainant's individual characteristics relating to her disability or her needs. The complainant was not consulted in this process. Given her concerns, the complainant offered to get an independent expert to carry out a risk assessment on the post in Unit B but this was rejected by the respondent. The complainant's solicitor stated that the complainant's particular concerns due to her illness were ignored and the respondent did not engage on any constructive basis with her. At this point, the complainant was directed to take sick leave despite not being sick where the Director of Nursing advised her trade union official that they "did not know what to do with the complainant". The complainant was subsequently directed to take administrative leave all of which adversely affected the complainant's pension. The complainant was directed by management to report to the locked ward in Unit B which she duly did on 28 February 2010. She worked at that location for one day only as a result of which her lymphoedema was exacerbated due to the interactions with those within the ward and due to the nature of the work involved. This exacerbation of her lymphoedema was confirmed by her GP and Consultant Oncologist. The complainant's solicitor submits that a single day working at this inappropriate location caused injury to the complainant. The complainant was reviewed by Dr. N again on 21 April 2010. The complainant's solicitor submits that Ms. K, Director of Nursing had not taken up Dr. N's offer as set out in his letter dated 28 October 2009 to Ms. K "to comment further if appropriate on her fitness for the new role once these assessments have been complete. He wrote to Ms. K on 21 April 2010 noting that he had reviewed the complainant and stated "she tells me that she returned to work briefly in (Unit B) where she apparently was working in a locked ward and one of the patients repeatedly bumped into her and hit her on the arms. She reports that she tried to protect her left arm with her right and apparently developed aggravation of her underlying lymphoedema which you know is longstanding." Dr. N suggested a case conference to determine a way forward.
2.4 Following these injuries, the complainant suffered from severe depression, a condition which did not affect her previously even during two episodes of cancer both of which required chemotherapy, radiation treatment and surgery and contends that she was treated in an exceptionally off-hand and ill-considered manner by the respondent. In or around April/May 2010, there was some discussion with the respondent in relation to providing the complainant with increased pension years under the ill health early retirement superannuation scheme. In this regard, the complainant consulted with a financial services company. Having reviewed her own finances, she contends that given her pension would be greatly reduced and the fact that the financial services company advised her that as she was certified fit for work, she could not avail of the pension scheme and had no choice but to return to work for at least three more years. The complainant's GP confirmed that the complainant was fit to return to work in October 2010. The respondent stated that it had an alternative post for her at Unit C in mid December 2010. Due to her concerns, the complainant visited the location to talk to the nurse in charge. The complainant states that at that point he knew nothing about her disability. She advised him of her lymphoedema and he stated that this post would be totally unsuitable for her and he was shocked that she had been assigned to this area. He brought her around and introduced her to the patients. It was a heavy geriatric male ward of 20 patients where many of the patients had to be lifted, some were bed bound and had to be turned regularly and five/six of the patients fell and had fits on a regular basis. She was informed by the nurse in charge that out of the group, there are six/seven patients who are involved in "hitting" regularly, the very issue which originally caused the exacerbation of her lymphoedema in February 2010. The complainant states that no proper risk assessments were conducted by the respondent in relation to assigning the complainant to this location, which in the complainant's view, was wholly and utterly inappropriate in light of both past experience and her own knowledge of her condition, with which she had by that time more than 11 years experience. The complainant's solicitor states that the respondent decided that it was appropriate for the complainant to work in this location. The complainant's solicitor contends that at this point, the respondent sought to insist that the complainant undertake a series of irrelevant and misguided tests namely isokenetic testing, demonstrating a lack of comprehension of the complainant's disability and which ran contrary to established guidelines (issued by the Irish Cancer Society) for managing her disability. She discussed this with her GP and Dr. C, senior lecturer in Vascular Disease who stated that the isokenetic testing would exacerbate her condition. At this point, the complainant stated that she felt very frustrated by the way she was being treated by the respondent and submitted that she had suicidal thoughts. In the interim, at the request of the complainant who had become frustrated with the respondent's ongoing steps to prevent her return to work, with the provision of appropriate measures, Dr. C, senior lecturer in Vascular Disease (which incorporates lymphoedema) wrote to Dr. F advising that the complainant was fit to work if she was given a suitable environment and guidelines for the management of her condition.
2.5 A meeting took place on 8 April 2011 between the complainant and a senior HR representative of the HSE who informed the complainant that there may not be a job for her, even if a proper risk assessment was conducted. The complainant alleges that he stated that "we are fast coming to an end of what we are willing to tolerate from you." A medical report of Dr. G of Medmark Occupational Healthcare instructed by the respondents confirmed in her report dated 5 May 2011 the then existing and ongoing disabilities of the complainant. She further noted that the complainant had appeared "to have managed her disabilities successfully from within the context of work for over 10 years" at that juncture. Dr. G further confirmed that the complainant wished to work and that she believed that the complainant should be afforded the opportunity to continue in employment. Dr. G noted certain limitations in the work which could be undertaken by the complainant. She proceeded to note that " it is her considered view that the complainant can be considered medically fit for work as a staff nurse with the following restrictions;(i) she should not work in a role that requires her to lift on a repetitive basis (ii) she should not work in a role that places her at significant risk of personal injury." Therefore, the complainant was fit to return to work as long as she would be returned to work in a suitable role through the provision of reasonable accommodation. The complainant contends that during her period of absence from work, the respondent failed in its duties to properly assess or attempt to understand the complainant's disability. The complainant's solicitor submits that any reasonable efforts by the complainant to assist the respondent in understanding her condition were met with disdain and contempt. The respondent failed to take up offers from the complainant to permit their doctors to liaise with the complainant's medical experts who had specialist knowledge of the complainant's condition. The history of dealings between the respondent and the complainant directly and through her union dragged on for a considerable period following the complainant being in a position to return to work. During the Summer of 2011, the complainant was offered a post in the Central Support Office which involved clerical type work and acting as a receptionist and assisting with writing up clinical notes and care plans. The complainant submits that this clerical type role was not appropriate to her given her vast nursing experience of 35 years which would go unused and in addition she would have been down approx. €800 per month on her salary.
2.6 The complainant's representative submits that during this long protracted period, the complainant continued to suffer financial losses. The complainant's representative contends that no reasonable efforts to provide proper and reasonable accommodation to the complainant to return to work were made by the respondent. The roles offered were of a more junior level and desk based which failed to take account of the extensive specialist nursing experience which the complainant had acquired over 35 years of work experience in her field. In addition, the remuneration available to the complainant if she had accepted such offers were clearly of a significantly lesser sum than that which she had been earning. The complainant's representative submits that there were a number of positions available to the respondent, a very substantial and large employer within the State, which could have been offered to the complainant. The complainant's representative contends that ultimately, in light of the refusal of the respondent to engage with the complainant in any reasonable or meaningful manner, failing to take account of her disability yet extensive experience, the complainant was left with no option but to resign from her employment in January 2012, a step which she did not wish to take and which has resulted in significant losses to the complainant. In conclusion, the complainant is alleging that she was discriminated against by the respondent on the grounds of her disability and was not provided with reasonable accommodation in this regard. She is also alleging that she was discriminatorily dismissed from her employment. Her legal representative submits that following a career spanning 35 years as a nurse and through two bouts of cancer, her employment was brought to an end and she was forced to retire early from work at 59 thereby giving rise to direct and considerable financial disadvantage and loss to her.
3. Summary of the respondent's case
3.1 The complainant commenced employment in Hospital A as a staff nurse in December 1999. She was assigned to Unit A, a residential unit for adults with intellectual disability. In May 2009, the complainant had a period of sick leave where her GP indicated that she was suffering from work related stress. In line with HSE policy, the complainant was referred for support to the occupational health department. The earliest available date was September 2009. In August 2009, as part of a general re-organisation of the intellectual disability service, the complainant's place of work was changed to another unit within the service. The respondent submitted that the movement of staff to different areas benefits staff in terms of the development of their skill set. The respondent states that the complainant's move was unrelated to the issues which arose between the complainant and the newly appointed Assistant Director of Nursing at Unit A in April/May 2009 which the respondent puts down to a personality clash between the two individuals. The respondent contends that the complainant did not agree with the proposed change and met with management to highlight her concerns that her health would suffer if she was transferred out of Unit A. The complainant attended with Dr. D, the Occupational Physician in September 2009 on foot of the original referral for work related stress. Dr. D's report recommended that the complainant be retired on grounds of ill health. The complainant did not agree with the assessment of Dr. D and management continued to engage with her in order to resolve her issues and to facilitate a return to work.
3.2 As part of the process of dealing with the complainant's issues, she was referred to Dr. N, Occupational Health Physician for a second opinion on how best to proceed. Dr. N issued a report to management in October 2009. He suggested that "a risk assessment be carried out using the job functional analysis form for both posts detailing the essential functions of both roles." Following on from the report of October 2009, another report was issued on 11 January 2010 where Dr. N stated that "unfortunately this is not a medical matter and requires some form of management response." The respondent contends that on foot of Dr. N's report, a risk assessment was carried out on the complainant's original work area and the proposed new area. The risk assessments were carried out initially by the Director of Nursing, Ms. K and subsequently by an Occupational therapist. The results of the risk assessment indicated that the proposed new location did not pose any greater risk to the complainant than the old location that she worked in. The statistics regarding incident reports between October 2006 and October 2009 in Unit A were 12 episodes of verbal aggression and 11 episodes of physical aggression. For the same period in Unit B, there were 5 episodes of verbal aggression and 3 episodes of physical aggression. The Director of Nursing, Ms. K stated that she viewed Unit B to be a safer more appropriate option for the complainant, on the basis of the risks associated with Unit A in the main, lone working and manual handling. Ms. K was concerned that there was a significant amount of lone working in Unit A and that the complainant would be reliant on patients to assist her, for example, if she fell on a slippy floor or similar but there was no lone working in Unit B. Following a number of meetings with local HR and local management, the complainant reported to work in the new location on 28 February 2010. However, the complainant went on sick leave the following day and indicated to management that they had not fulfilled their duty of care towards her, in that, she had been banged into by clients on numerous occasions during the day and that the complainant alleged this exacerbated her condition and resulted in prolonged sick leave. The respondent contends that reports from nurse management and the complainant's colleagues on that day do not corroborate the complainant's assertions that she was injured at work on the day she returned.
3.3 The assertions by the complainant that the patients in the new location were aggressive and confined to a secure unit are not borne out by the patients care plans or by nursing management's assessments of the clients on the unit. The respondent admits that the unit was locked and the reason for same was that some of the clients were elderly and were inclined to wander if the doors were left open. A witness for the respondent, Ms. O who worked alongside the complainant on the day she worked at Unit B gave evidence to say that there were no violent episodes but there would be little arguments over cigarettes, the TV channels but apart from that, the residents got on very well. She did recall that there was an incident where one of the residents opened the door and burst past her and she turned on her ankle and tore ligaments. She stated that "you have to be very vigilant with them at all times". Another witness Ms M, a staff nurse who worked in Unit B gave evidence to say that the complainant interacted well with residents on the day and said to her "she had a lovely day and didn't know what she was so anxious about". Ms. M stated that the residents would argue over minor issues and that there would be episodes of verbal aggression about once a month which would be documented.
3.4 The complainant was on sick leave and was again referred to Occupational Health. Dr. N suggested "a case conference to determine a way forward.". Following on from this referral, a number of meetings were held with the complainant and her union with a view to exploring an early retirement option for the complainant. This option was explored at the request of the complainant's union. The complainant's reckonable pension service was distributed among several employers and it took the superannuation department a number of months to prepare a benefit statement. While this was being carried out, management took the unusual step of assuring the complainant that she would not suffer any diminution of her sick pay during this time despite the fact she had exhausted her sick pay entitlements. The benefit statement did not meet with the expectations of the complainant from a financial perspective. The Employee Relations Manager for the respondent, Mr. R denies that he stated to the complainant "we are fast coming to an end of what we are willing to tolerate from you." On the day of the hearing, he stated in response to questioning "I don't want to know anything about a person's medical condition, it's not my business that is for occupational health to decide." He also had issues with the complainant "questioning every decision of occupational health". Subsequently, the complainant was referred to Dr. F in the Occupational Health department for advice on how best to proceed. The complainant was not happy with the referral to Dr. F and correspondence was exchanged between management and her union.
3.5 Dr. F provided a report on the complainant's condition following appointments on 4 and 25 November 2010. Dr. F states that "having carefully reviewed this lady on both 4 and 25 November 2010, it is my opinion that the only tasks she cannot carry out is if she was placed in an area where there would be a significant risk of assault ". Following on from this appointment, the complainant attended with Dr. F on 23 December 2010. The complainant outlined to Dr. F that she had some difficulty in lifting. He referred the complainant for assessment to a physiotherapist in order that the extent of her disability could be assessed. He also recommended that she attend for isokenetic testing which would assist them in establishing the functional deficit present in her upper limbs. Despite agreeing to the referral for assessment to the physiotherapist at the occupational review with Dr. F, the complainant in subsequent correspondence objected to attending the appointment. There followed a lengthy period of discussion and correspondence. Due to the complainant's issues with Dr. F, an appointment was made with Medmark, an independent occupational health organisation for an assessment. A report from Medmark was issued to management stating that "taking all the information to hand and her assessment today, it is my considered view that she can be considered medically fit for work as a staff nurse with the following restrictions: 1. She should not work in a role that requires her to lift on a repetitive basis and 2. She should not work in a role that places her at a significant risk of personal injury". At this time, the complainant had exhausted her sick pay under the HSE sick pay scheme and was advised to apply for pension rate of pay. The complainant subsequently withdrew her application for pension rate of pay.
3.6 The respondent submits that a number of options were put to the complainant in order to facilitate a return to work including a placement at Unit C. This offer was rejected by the complainant on grounds of unsuitability. The Director of Nursing also offered her a post at Unit D which housed 5 able bodied persons who went out to work during the day. They had mental health issues and the nurse's role was to support them with independent living, assist with giving them their medication and organising health care plans and reviews of same. The Director of Nursing submits that she felt this role would be suitable to the complainant as she would have been able to avail of a 3 hour break during the day and return in the evening to finish her shift. However, the complainant rejected this option. Another option of working at the Central Support Office was put to the complainant. This role involved developing and documenting individual care plans in conjunction with the service user, their family and the multi-disciplinary team. It also comprised the maintenance of accurate and contemporary nursing records. The respondent submits that the complainant also rejected this role. The respondent submits that ultimately the complainant took early retirement from the respondent on 29 January 2012. The respondent denies that it discriminated against the complainant and contends that it tried to put reasonable accommodation in place for the complainant but these offers were rejected out of hand. The respondent denies that the complainant was constructively discriminatorily dismissed from her employment.
5. Conclusions of Equality Officer
5.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court 1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.2 The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability" is defined in Section 2 of the Acts 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".
It was accepted by both parties that the complainant's condition is a disability within the meaning of the Acts and I am satisfied that her disability comes within the meaning of the definition as above. The complainant submits that she was not provided with reasonable accommodation. Therefore, the matter I have to consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts.
5.3 Section 16 of the Acts provides:
"For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer,
(4) In subsection (3)-
"appropriate measures" in relation to a person with a disability -
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for herself or herself;"
5.4 I am guided by the Labour Court determination in the case of Humphrey's v Westwood Fitness Club EED037 which was upheld by the Circuit Court. The Labour Court stated:
"At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition................. 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."
Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant's own doctor or an independent doctor where there are concerns in relations to the health of a worker. The first issue relates to the complainant's move from Unit A in the community to a locked ward at Unit B. The respondent argues that the move came about as it is HSE policy to move persons to expose them to different situations in order to develop a comprehensive skill set. In addition, the Director of Nursing stated that she was concerned for the complainant particularly regarding the lone working issue in Unit A. Having examined the evidence and the testimony on this issue, I find it difficult to comprehend that the complainant who had 35 years experience as a nurse and worked successfully without incident at Unit A for the past ten years was now being moved on the basis of developing her skill set given that she only had a few years to go until retirement. In addition, the argument that the Director of Nursing was concerned about her lone working in Unit A and the risks involved only seemed to come to light in September 2009 despite the fact that she had worked there successfully for the past ten years without incident. Even as far back as April 2004, Dr. D (Occupational Consultant with the respondent) in a letter to the (Assistant Director of Nursing) stated "I would not find any specific severe disability which would prevent Ms. G undertaking her duty roster in (Unit A), day or night roster." In addition, in a letter dated 11 January, 2010 from Dr. N (Occupational Consultant for the respondent) to the Director of Nursing, he states "I was unclear as to the evidence that she is unfit for lone working in (Unit A) given that she has been doing this apparently without adverse consequence for over six and a half years now. It would be difficult to support this from a medical perspective". I am satisfied given that the complainant had worked in Unit A for a considerable period of time with her disability and without experiencing any difficulty, I consider that she had been provided with appropriate measures and the moving of her from that accommodation was an ill-considered and an ill-thought out solution to an interpersonal staffing issue which existed there between her and the Assistant Director of Nursing. The Director of Nursing, on the day of the hearing, stated that as far as she was concerned she had sorted out the matter relating to the bullying and that was the end of it. However, in my view it is highly significant that the complainant was moved out of a post which suited her needs in relation to her disability despite having medical evidence from their own Occupational Health Consultant to the contrary.
5.5 In a letter dated 15 September 2009, her Consultant Oncologist stated"Ms. G would appear to be managing quite well doing her job as she is currently practicing it, any change in her job structure would create a certain amount of stress which would not be good for Ms. G's full recovery both in the short term and long term." In a letter dated 28 October 2009, Dr N (Consultant Occupational Physician with the Occupational Health Department of the HSE) wrote to the Director of Nursing stating "On balance therefore, I see no absolute medical contraindication to why this lady can't continue in her post presuming that she has been providing acceptable service in this role for ten years. She does have underlying health problems and vulnerabilities which she perceives could be aggravated or destabilised with the new role and the evaluation of essential functions of the new role will allow comparison of these issues between issues between the posts on an objective and transparent basis... I am happy to comment further if appropriate on her fitness for the new role once these assessments have been complete." The results of the risk assessment indicated that the proposed new location did not pose any greater risk to the complainant than the old location that she worked in. The statistics regarding incident reports between October 2006 and October 2009 in Unit A were 12 episodes of verbal aggression and 11 episodes of physical aggression. For the same period in Unit B, there were 5 episodes of verbal aggression and 3 episodes of physical aggression. The Director of Nursing, Ms. K stated that she viewed Unit B to be a safer more appropriate option for the complainant. However, after one day working at the new location, the complainant attended her GP the following day who confirmed that her lymphoedema was exacerbated due to her interactions with the patients and the work involved. The respondent on the day of the hearing accepted that the complainant had suffered injury as a result of her day working at Unit B. Ms. M, a nurse who was employed at Unit B, gave evidence on the day of the hearing stating that the residents would argue over minor issues and that there were episodes of verbal aggression about once a month which were documented. This does not tally with the assessment carried out by the Director of Nursing which stated that between October 2006 and October 2009 there were 5 episodes of verbal aggression in Unit B during that 3 year period. The Director of Nursing did state at the hearing that she was in a difficult position and that there was major restructuring underway within the organisation and that she had a staff cohort of 500 employees. I am of the view that the nurse in situ in Unit B would have closer involvement and would be aware firsthand of the clients in her care and therefore I question the Director of Nursing's assessment of Unit B as a more suitable workplace for the complainant and I feel questions remain over the risk assessments carried out between the two posts.
5.6 A leading textbook on Irish Employment Equality Law neatly summarised an employer's duties under the law as follows:
"In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment)." 2
I find that the respondent did not carry out a thorough assessment in relation to the needs of the complainant as outlined above. The complainant was not allowed a full opportunity to participate at each level as outlined in the Humphrey's v Westwood Fitness Club case at 5.4 above. There was no joined up thinking between the Occupational Health division and the Employee Relations division and in fact the opinions of the respondent's own Occupational Health Consultant and the complainant's Oncologist were disregarded. What was needed here was close consultation with the two divisions and the complainant. Having evaluated all the evidence and testimony on this issue, I find that the complainant has demonstrated evidence of a prima facie case of discrimination on grounds of her disability and the respondent has not rebutted this evidence.
5.7 While the respondent admits that the complainant was injured on the day she worked at Unit B, it states that it made reasonable efforts in relation to finding an alternative suitable location for the complainant and also made enquires in relation to exploring an early retirement option for the complainant. Having considered all the evidence on this matter, I find that after consultation with her financial advisers regarding her pension entitlements, the benefit statement did not meet with the expectations of the complainant and she withdrew from that process. The complainant's solicitor states that given the complainant's treatment at the hands of the respondent since September 2009 and the added stress and anxiety about her job and the impact that the failure to provide reasonable accommodation has had on her, she felt she had no alternative but to take early retirement from the respondent on 29 January 2012, a step she did not wish to take and which has resulted in significant losses to her. The definition of dismissal within the Employment Equality Acts covers dismissal and constructive dismissal. Section 2 (1) provides that dismissal includes,
"the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so..".
Therefore, the employee must demonstrate that he/she was entitled to resign from his/her employment due to a fundamental breach of contract or in all of the circumstances, it was reasonable for the employee to resign. There is the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. In the instant case, the complainant's representative has submitted that the complainant was entitled to terminate her contract of employment by application of the reasonableness test.
5.8 Having examined all the evidence in relation to this matter, I am satisfied that following being taken out of Unit A where she worked successfully for ten years and where the occupational consultant stated that he could see "no absolute medical contraindication to why this lady can't continue in her post presuming that she has been providing acceptable service in this role for ten years" and where her oncologist stated "Ms. G would appear to be managing quite well doing her job as she is currently practicing it, any change in her job structure would create a certain amount of stress which would not be good for Ms. G's full recovery both in the short term and long term," the complainant was forced to attend for work at Unit B and after only one day at this location, she sustained injury and an exacerbation of her lymphodema. Therefore, she had grave concerns understandably regarding the other offers of Unit C and Unit D. The offer of the post at Unit D came in the Summer of 2011 on foot of mediation and neither party was in a position to provide comprehensive details on the suitability or otherwise as a result of the confidentiality attaching thereto although the complainant's solicitor stated that the role was unsuitable given her disability and her salary would have been greatly reduced due to the non-availability of premium allowances which she had at Unit A. The respondent did not explore the option of getting her back into Unit A where she had reasonable accommodation and where she had worked for the past ten years without difficulty and had gained vast experience of the nuances of her clients and how to de-escalate a situation if it arose. The option of the post at the Central Support Office did not relate to her expertise as having vast nursing experience and appeared to be more of an administrative role involving maintenance of records and medical data and involved a substantial reduction in her pay. The complainant had since September 2009 been out of work during this long protracted ineffective engagement by the respondent. I am satisfied that the respondent was not proactive in its approach to her as is required as outlined at 5.6 above and indeed was tardy in its approach to trying to find her alternative reasonable accommodation. I consider that no appropriate or suitable posts were offered to her. The roles offered were of a more junior level and failed to take into account her extensive specialist nursing experience and the remuneration available was significantly less than what she had been earning at Unit A. I consider that given the effects of the stress of this situation on her health, she felt that she had no other option but to take early retirement on 29 January, 2012. As a result of the lack of constructive engagement by the respondent with the complainant and the unsuitability of the posts offered, I consider that the respondent sought to "freeze her out" so that she would retire early on ill-health grounds. Having evaluated all the evidence, I am of the view that the respondent failed in its duty of care to the complainant. I found the testimony of Mr. R, Employee Relations Manager contemptuous in relation to his statement in response to questioning "I don't want to know anything about a person's medical condition, it's not my business that is for occupational health to decide." He also had issues with the complainant "questioning every decision of occupational health". On the day of the hearing, I found his demeanour and body language to be very dismissive of the complainant and her needs. I am of the view that given her experience of being forced to move to Unit B and after only one day working at this location she sustained injury that she had every right to question a decision which may cause her injury which was borne out in respect of her re-location to Unit B. Mr. R denies that he said to the complainant "we are fast coming to an end of what we are willing to tolerate from you." I found his testimony to be quite disdainful and I consider that he was very defensive with regard to my questioning at the hearing which further leads me to conclude that the respondent did not give due consideration to the needs of the complainant.
5.9 In addition, in an e-mail from the Ms. K (Director of Nursing) to Dr. N (Occupational Consultant of HSE) on 2 April 2010, she states "I am not sure if her health had deteriorated, I understand she has had some admissions and procedures in hospital in the past months, but I am unsure what they were and I really don't know if she is being totally upfront with either of us in respect to her state of health. I do believe that she did not suffer ill treatment in (Unit B) on the one day that she worked." However, on the day of the hearing, the legal representative for the respondent accepted that the complainant had suffered an exacerbation in her lymphoedema after only one day working at Unit B which was certified by her GP and Consultant Oncologist. On balance, taking all the evidence into consideration, I am satisfied that overall, the complainant could see no way out and no prospect of being given a post that would be appropriate and take into consideration the inherent characteristics of her disability or being returned to Unit A where she had reasonable accommodation working with clients she knew very well and knew how to de-escalate a situation if it arose. I found her to be a credible and cogent witness and her testimony was consistent with the facts as presented in the case. Ultimately, given the effects on her health, she took early retirement at age 59 from the respondent which resulted in considerable loss both financial and otherwise to her. I conclude that, on evaluation of all the evidence, the complainant was constructively discriminatorily dismissed from her post following 35 years service as a nurse, over 20 of which were with the respondent, even through two bouts of cancer. I am cognisant of the irony of an organisation like the HSE, which is a very large and substantial employer within the State, having such an apathetic attitude to the provisions in the Employment Equality Acts in relation to disability and the provision of reasonable accommodation to employees who become disabled during their working lives. I find that the complainant has established a prima facie case of discriminatory constructive dismissal on grounds of her disability.
6. Decision of the Equality Officer
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment;
(ii) the respondent did discriminate against the complainant and failed to provide her with reasonable accommodation in accordance with section 16 of the Acts;
(iii) the complainant was discriminatorily constructively dismissed by the respondent in terms of section 2 of the Acts.
Under section 82 of the Acts, an Equality Officer may order re-instatement of the complainant in circumstances where a finding of discrimination has been made. It has been the practice of this Tribunal in cases where discrimination has been held to occur, to place the complainant in the position s/he would have been in had the discriminatory treatment not taken place. However, the complainant in this case did not want re-instatement in her employment and sought financial compensation. Accordingly, I direct that the complainant be paid an award of €85,000 which equates to approximately 2 years salary. This is in compensation for the effects of the discrimination and does not contain any element of pay and is therefore not subject to PAYE/PRSI.
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Valerie Murtagh
Equality Officer
12 September, 2013
Footnotes:
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.
2 Bolger M., Bruton C. and Kimber C. Employment Equality Law (Dublin 2012), para 7-112