EMPLOYMENT APPEALS TRIBUNAL
CASE NO: UD990/2015
CLAIM OF:
Mary Foley - claimant
Against
Health Service Executive T/A UL Hospital Group - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr T. Gill
Ms H. Henry
heard this claim at Limerick on 26th August 2016 and 3rd February 2017 and 21st June 2017.
Representation:
Claimant: Mr. Mike McNamara, IMPACT, Roxborough Road, Limerick
Respondent: Ms Lisa Walsh, Employee Relations Division, HR Department, University Hospital Limerick
Claimant’s Case:
The claimant commenced employment on 1st April 2000 in the role of Grade IV HIPE Coder in a hospital in the south west of the country. She reported to TD who was her Line Manager. Her main duty was to code charts on to the national HIPE database.
Her employment was largely uneventful until February 2012 when she became ill and collapsed at work. She was subsequently out sick and under the care of her GP and had regular appointments with the Occupational Health Department.
In March 2013 the claimant was referred to a consultant ophthalmologist surgeon. The claimant had been suffering from double vision. In July 2013 she suffered a retinal detachment which necessitated surgery. She recovered well after this surgery but her eyesight suffered.
In mid January 2014 her Specialist Occupational Health Physician wrote to EB Finance Manager to confirm whether or not an alternative role was available for the claimant in the event she might become fit for work. The claimant knew that she would have to move jobs within the workplace and was willing to work in another area.
In mid May 2014 her occupational health physician asked for a neuropsychological evaluation to be carried out on the claimant. This was never done.
In July 2014 the claimant’s consultant neurologist recommended that the claimant be reassigned to an alternative role.
The claimant’s Specialist Occupational Health Physician wrote to management in early September 2014 indicating that the claimant was anxious to explore if a role which did not require full visual acuity was available to her and that the claimant was fit to discuss the type of role that might suit her.
In late October 2014 the claimant’s line manager (TD) met with her to ascertain what type of role she felt might be suitable to her given her medical issues. The claimant outlined that:
· She did not want to work in a role that involves having someone helping/accompanying her.
· She did not want to work in a role where someone had to check her work afterwards
· She was not in a position to do shift work as this might involve driving in the dark
· She was not interested in any role in another county as again this could involve driving in the dark.
On 5th March 2015 the claimant met her Specialist Occupational Health Physician. He explained to her that as management had not reverted with an alternative suitable position the only option open to her was to retire on health grounds. At that time it did not register with her what this actually meant to her. She had not had sight of the letter from her Specialist Occupational Health Physician which related to her retirement on health grounds.
She was very surprised and shocked to receive a letter dated 20 May 2015 indicating that the respondent had received and accepted her letter of resignation with effect from 5 March 2015. She thought she had signed forms relating to her pension only. She never tendered her resignation.
The claimant has not sought alternative employment.
Respondent’s Case:
TD is Group HIPE Manager and is thirteen years in that role. The claimant reported to her. The work carried out by the claimant, who worked alongside a team, was to enter data on to a data base. The role was very intense and consisted of reading charts and using a dictionary.
The claimant collapsed in work in early 2012. While the claimant was absent on sick leave TD kept in touch with her. She was aware that the claimant was anxious to return to work. She contacted the claimant’s consultant neurologist and he felt that the claimant was unable to return to her regular position and was unable to determine a specific diagnosis for the claimant.
She met the claimant in October 2014 to ascertain what type of role she felt might be suitable for her. The claimant outlined a number of roles that she was not interested in. At this time an alternative role could not identified that would meet the claimant’s requirements. TD referred the matter to H.R.
On 5th March 2015 the witness was in receipt of a letter from the claimant’s Specialist Occupational Health Physician who recommended that the claimant was unfit for duty. It was his opinion that the claimant met the medical criteria to retire on grounds of ill health. SF, SEO wrote to the witness on 27th April 2015 informing her that HR would not proceed with seeking an alternative role for the claimant and were happy to progress the claimant’s retirement on ill health grounds.
A Senior Executive Officer (SF) in charge of employee relations gave sworn testimony to the Tribunal. SF told the Tribunal that in the case of retirement on ill health she is not privy to reports from Occupational Health (OH) but that once they confirm that an employee is eligible and wishes to retire on ill health SF goes ahead with this.
In the case of the claimant SF received a report from OH recommending that the claimant be retired on grounds of ill health. SF also received forms duly signed by the claimant which indicated that she wished to resign/retire due to ill health.
Up to this point SF had tried, without success, to find positions suitable to the claimant, given her illness and poor sight acuity. However once OH recommended retirement and the claimant signed the appropriate forms SF ceased looking for suitable positions and proceeded to process the claimant’s retirement.
SP outlined the difficulty she experienced in trying to find a suitable position for the claimant. Although SP never communicated directly with or met the claimant she understood, from documentation available to her, what the claimant could not do but had no knowledge of what she could do.
There was a case conference held in respect of the claimant and although the claimant was not formally invited, SP said that she could have attended if she wished. The purpose of this case conference was to explore what, if any jobs, the claimant could return to. Following on from this case conference SF tried to find suitable jobs for the claimant and by the end of January/start of February 2015 she concluded that there was nothing suitable at the time.
Dr. CD, Specialist Occupational Health Physician told the Tribunal that he is a medical doctor , impartial and not in any way connected to HR. He said that they, O.H., do not retire anyone unless they are in complete agreement. A couple of years had passed since the claimant had become ill, all reasonable treatments had been tried and tested and she wanted a resolution.
The claimant met the criteria for retirement and in his report of March 2014, sent to the claimant and HSE, he stated that her wish was to retire on grounds of ill health. The claimant was also advised to talk to pensions and CD said that he was surprised by the events that followed. It would have been no shock to her when she received her letter of acceptance, the decision was hers.
JH Group Director of HR gave evidence of the range of alternative posts sought for the claimant. The claimant didn’t want supervision or to work with other people (to be independent). She said reception, cleaning, portering and catering were all looked at, some would have been lower grades of pay. Ennis as a location was also looked at but there was nothing readily available for the claimant. H & S and risk assessments would have to be carried out should a position be agreed on.
JH said her door was always open, there was no compulsion on the claimant to sign for her retirement, she was on pension rate of pay and that would have continued. When the request to retire, signed by the claimant, was received JH said she was not going to block ill health benefit for anyone and approved it.
Determination:
This is a claim for constructive dismissal. The employer’s evidence as to its agreement with the employee and its efforts to provide reasonable alternative work was unsatisfactory and fell short of the standard expected of an employer in this situation.
Based on the HR evidence given by the employer it is noted that Occupational Health were involved throughout. It is common case that the claimant had been receiving information on her potential entitlements were she to retire and she also discussed with her line manager the possibility of retiring on ill-health grounds up to February 2015.
No evidence was adduced to suggest that the claimant was pressurized into taking retirement. Her doctor’s letter confirmed that she wished to retire and met the criteria to do so. The employer proceeded on that basis, the relevant forms issued and were returned singed by the claimant. No correspondence was received after the fact and no grievance was raised by her or her representative. Her employer only became aware of her grievance on receipt of her complaint form to the Tribunal in September 2015.
The claimant has failed to discharge the high burden of proof that she had no option but to retire. The claim for Unfair Dismissal under the Unfair Dismissal Acts 1977 to 2007 therefore fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)