ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00000278

Complaint(s):

Date of Adjudication Hearing: 28/02/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: WRC Board Room 4.15 Lansdowne House

Procedure:

In accordance Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant commenced employment with the respondent as a Staff Nurse on 25th March 2004. She resigned from her job on 15th March 2015, but shortly after applied to return to work with the respondent; she was re-employed on 30th on a two year fixed term contract.

Summary of Complainant’s Case:

The complainant provided a substantial written submission.

The complainant submitted that she had been deployed to a particularly heavy ward, with very dependent patients. From 14^th -18^th April 2015 the complainant was unable to attend work and submitted a certificate with a diagnosis of back pain.

On 20^th April 2015, the complainant wrote to her employer requesting that she be moved from the ward she was working on as she was suffering severe problems due to the heavy work required. The complainant submitted that the respondent did not reply to her correspondence or meet her to discuss her disabilities, or to discuss what accommodations she might require. The complainant returned to work on 22^nd April 2015. The respondent continued to roster the complainant on the same ward while an Occupational Health opinion was sought. The OH Nurse recommended that the complainant be reviewed by the Occupational Health Physician to review her fitness to work in her role.

The complainant submitted that neither the respondent nor the OH Nurse made the referral to the OHP. Therefore, this recommendation was not actioned. Nor did the respondent contact the OH service at this time to enquire as to how the complainant’s disabilities should be accommodated while waiting to be reviewed by the OH Doctor.

The complainant submitted a Certificate from her GP stating she was unfit for work from 29^th April to 3^rd May due to Acute Discitis. The respondent continued to deploy the complainant to the area that was aggravating her disability.

The complainant had a MRI on 10th May 2015 and the report of the Consultant Radiologist detailed that the complainant was suffering from “…multilevel disc disease with disc bulges". The complainant presented at her HR Dept. with the MRI Report and sought a move to a lighter duty ward, based on the content of the MRI Report and the severe pain she was suffering. She was informed that the Director of Nursing was on leave for a further week and that the HR Manager was also on leave, and no decision could be made at that time to move the complainant to a lighter duty ward.

On 21^st May 2015, following a review, the OH Nurse Report stated that heavy lifting could be detrimental and that the complainant should not continue to work on Ward X. It is the complainant's submission that this appointment was scheduled 4 weeks after the previous recommendation for the complainant to be reviewed. The complainant contends this referral only occurred because she approached the respondent with her MRI Report.

On the 25^th May 2015, the complainant's G.P. also provided a separate letter to the respondent wherein she stated that her work was impacting on her back problem due to the heavy lifting and physical nature of the job and that she should be moved to an area of lighter duties. On 26^th May 2015, the complainant presented to the HR Dept. with the GP’s letter in a distressed state. She was in a great deal of pain and could mobilise only with difficulty.

On 27^th May, the complainant returned to work on Ward X. The complainant met with the Director of Nursing and HR Manager. At this meeting the complainant alleges she asked again to be provided with lighter duties on another ward but her Director informed her that this was not possible as newly recruited nurses had been redeployed. The complainant alleges she was told “we don’t have a job for you”. She was asked about other jobs that both managers had heard she was applying for elsewhere. She felt threatened when reminded that she was on probation. She was told to wait for 1-2 days for an answer regarding a transfer and that she needed to be listed for manual handling training. The complainant gave direct evidence to support this version of events.

On 28^th May 2015, the complainant sent an email to both the HR manager and Director of Nursing informing them that she had instructed her Union, the INMO, to represent her. She also sought discovery of all documents on her file with effect from 1^st February 2015 to assist her progress her grievance. The complainant received the documents sought almost 8 weeks later on 19^th July 2015. The complainant views this response as an attempt to ignore her right to have her representative manage her grievance.

The complainant’s representative wrote to the respondent on 29^th May 2015, seeking information, the complaint contends that the information sought has not yet been responded to or provided. This letter of 29^th May also requested that the complainant’s grievances be progressed under Stage 3 of the Grievance Procedure. It was made clear to the complainant that she could progress her grievance but only in being represented by a friend, colleague or local Shop Steward. The complainant was again invited to a meeting under the Grievance Procedure on 19^th June, but with representation restricted to having a friend, a colleague or a local Shop Steward. The complainant viewed this obstruction and absence of cooperation as a breach of procedure and her fundamental rights.

The complainant was reviewed by the Occupational Health Physician on 4^th June. The respondent’s file note of 4^th June 2015, following a phone call from the OH Physician, on the same day notes “[The complainant is] Fit to return to ward but not to lift anything above 10 kilos” and “To be assessed in 4 Wks. by [the OH Nurse], or sooner if Name goes out sick with lighter duties.” This, the complainant contends, confirms the respondent understood that the complainant could return to work with accommodation in the form of lighter duties.

On 5^th June 2015, the respondent wrote to the complainant stating “The reason we have sent you home on full pay was to ensure your health and safety whilst we are awaiting the report back from your occupational assessment yesterday and on receipt of that as discussed we will arrange a risk assessment of your working unit and any other appropriate unit.”

The OH Physician’s Report of 11^th June states: “I recommended that she is fit to remain at work with restriction from lifting objects which weight more than 10 kilos.” .

On 12^th June 2015, the respondent wrote directly to the complainant regarding employment related matters, despite the complainant informing her on 28^th May 2015 that she had instructed her Trade Union to represent her on employment related matters. The respondent confirms that the complainant “…will remain out on full pay until such time as I contact you.” .

On 1^st July 2015, the OH Physician reviewed the complainant. The OH Report arising and dated 1^st July 2015 states “Name is not medically fit to return to her role. However, name will be medically fit to return to duty if she can be facilitated to a role which is desk-based and does not involve lifting.”

On 10^th July 2015, the respondent’s HR manager informed the complainant:

“I received the report on Wed, the OHP was going to request for you to inform her or ourselves when you complete your physiotherapy session (approx. another 3/5) so that I can arrange a date for your review. When you have that date can you email myself or HR so we can arrange an appointment for you.”

According to the complainant this is a grossly inaccurate account of what was stated by the OHP. There is no reference by the HR manager to the accommodation identified for the complainant’s disability.

On 27^th July, the complainant sought a referral to the OH Physician. Following review by the doctor on 4^th August 2015, the OHP wrote to the respondent’s HR manager stating “Her symptoms have improved…Currently name is not medically fit to return to her role which involves manual handling.” However, according to the complainant, there was no consideration given to an extensive list of duties submitted by the complainant on 17^th June 2017 to the respondent or a role that would not involve manual handling.

The complainant was again invited to a meeting under the Grievance Procedure on 25^th September 2015, but with her right to representation again restricted to having a friend, a colleague or a local Shop Steward.

Regarding Sick Pay the complainant submitted that on 30^th March 2016, the complainant’s representative sought details as to the payments made to the complainant since 30^th March 2015. The revised Sick Pay scheme for the public health service provides for an employee to be remunerated under a Critical Illness Protocol whereby one can remain on full pay for 183 days. One qualifying criterion is that the employee must be under the care of a Consultant. The complainant was eligible to be treated more favourably with effect from 1^st September 2015. However, the respondent did not consider this option. The respondent views the Sick Pay Scheme as the appropriate method of payment for an employee, when it was unable to obtain a risk assessor. This disadvantaged the complainant in disallowing her return to work, and, in income.

On 12^th June 2015, the respondent’s HR manager wrote to the complainant saying:

“…I am still awaiting the report from Occ. Health and I will be in touch as soon as I receive it. In the meantime as per our conversation last week you will remain out on full pay until such time as I contact you.

The respondent’s policy is that an employee on sick leave is paid in full, less illness benefit received by the employee. The complainant was not deducted for any illness benefit from 4^th June 2015. The complainant was not asked to submit sick certificates or repay social welfare payments until 3½ months later, on 22^nd September 2015.

When the complainant received a copy of her file on 20^th July 2015, there was no record of the period on or after 4^th June 2015 being recorded or regarded as sick leave. This period of absence should, according to the complainant, be treated as administrative leave to include normal premia earnings so as to avoid treating an employee with prejudice.

On 20^th August, the complainant was informed that sick pay was reducing to half pay with effect from 31^st August 2015. When the complainant objected to being on sick leave, she was instructed to apply retrospectively for social welfare payments to 4^th June 2015, and commence submitting sick certificates if she wished to be paid.

On 7^th October 2015, the complainant’s Consultant Orthopaedic Surgeon furnished his opinion that the complainant was fit to return to normal working duties.

The complainant submitted that on 9^th October 2015, the complainant was informed by the HR manager that, the risk assessment she was put off duty on 4^th June 2015 to commission, could not be carried out until she returned to the Rehabilitation Unit or the Day Hospital. This would require further review by the OH Physician.

The complainant puts forward that there is no evidence of the respondent commissioning a risk assessment of Ward X to ascertain if accommodation could be provided to the complainant. It was five and a half months later on 19^th November 2015 that a risk assessment was carried out of the Day Hospital. The complainant contends that she was put off duty on 4^th June 2015, and, disallowed from returning to work “….. until [the HR manager got] a risk assessment of Ward X or an appropriate unit.” .

When that risk assessment was done on 19^th November 2015, the consequent OH review on 24^th November 2015 reinforced the earlier OH opinions and, the complainant’s Physicians that the complainant could be at work with accommodation. The complainant contends that limiting the risk assessment to the Day Hospital denied her access to premia earnings.

On 25^th November 2015, the complainant eventually returned to work on the Day Hospital. She continued to suffer a loss of premium earnings while on the Day Hospital. On 5^th January 2016, the complainant wrote to the HR manager asking when her next occupational health appointment was due, and, when her next Risk Assessment was due. She was informed that she would not be reviewed until three months from her return date.

On 22^nd March 2016, the OH Physician supported the complainant’s view that she could continue to work with accommodation for her disability. On of 8^th April 2016 the respondent stated that the medical report recommended that the complainant remain working in the day ward. However, other wards would be risk assessed to ascertain if the complainant could work on them safely. The complainant believes this shows the employer had only looked at one ward as a possible place of work, a ward which did not provide opportunity for premia earnings.

On 7^th April 2016, the complainant met with her Director of Nursing to seek redeployment to a 24/7 area to mitigate the loss she was suffering. She again sought that a risk assessment be carried out of a Rehabilitation Ward as she was confident she could function there with accommodation as easily as on the Day Hospital.

The complainant made a number of attempts to move matters on but to no avail.

In July 2016, the complainant was redeployed to the General Rehab Ward where she has continued since without incident.

“Reasonable Accommodation”

The complainant asserts that the respondent was aware from the earliest stage that she was suffering from a disability. The complainant asserts that all the medical evidence indicates that she was at a disadvantage because of her disability. She further asserts that she made every reasonable effort to make the respondent aware at all material times as to what was required to accommodate her disability. The complainant’s GP, her Consultant, the Respondent’s Occupational Health Doctor and Occupational Health Nurse were all agreed that the complainant was fit to remain at work if provided with accommodation for her disability.

It is the complainant's contention that to avail of a defence under Section 16(3) an employer must show genuine engagement with the process of finding effective and practical measures to allow an employee return to work. The respondent’s efforts do not demonstrate engagement in any efforts to provide accommodation. On all occasions, the respondent sought advice from the OH service based on the complainant being able to work in accordance will all aspects of her job description for her role. At no stage was advice sought as to the accommodation that could have assisted the respondent return to and remain at work.

The complainant believes that the foregoing demonstrates that the respondent did not comply with Section 8 and Section 16 of the Acts when failing to accommodate the complainant’s return to work in accordance with the medical advices until 25^th November 2015 and that the foregoing demonstrates that the respondent did not comply with Section 8(6) of the Acts on or after 25^th November 2015.

Victimisation

On 20^th April 2015, the complainant alerted the respondent to a number of disabilities she had. She sought that she be transferred to another ward with lighter duties to accommodate her disabilities. The complainant contends that having raised concerns re her disabilities and the accommodation she required, her employer continued to deploy her to an area that aggravated her disabilities. The complainant contends that she was victimised when her employer acted in a way to unnecessarily obstruct and delay her in being accommodated for her disabilities.

The complainant contends that she was victimised when:

• She sought disclosure of documents relevant to a narrow time frame to assist her prepare her grievance.

• She was disallowed from remaining at work with accommodation in line with medical opinion.

• Disallowed from returning to work with accommodation in line with medical opinion.

• The respondent attempted to change her employment status from being on leave with full pay, to being on the sick pay scheme which resulted in considerable loss of income and hardship to her and her family.

• When deployed to an area to deliberately prevent her from accessing her normal premier earnings.

• The respondent, deliberately or otherwise, failed to understand and implement the advice of the relevant Medical Reports.

• The respondent failed to respond to numerous correspondence seeking responses to concerns she was raising about managing her disabilities and managing her return to work with accommodation.

• The respondent’s CEO failed to respond to her efforts to escalate her grievance when she believed that a conflict of interest arose with the HR manager and Director of Nursing managing same.

Harassment

The complainant contends that having raised concerns re her disabilities and the accommodation she required, her employer knowingly continued to deploy her to a Ward that aggravated her disabilities. The complainant contends this behaviour amounts to harassment. The complainant contends that she was harassed when her employer acted in a way to unnecessarily obstruct and delay her in being accommodated for her disabilities.

The complainant lists the same issues as outlined above under Victimisation as examples of harassment.

Discrimination

Regarding the claim of discrimination in relation to conditions of employment, the complainant submits that the respondent discriminated against her in terms of her conditions of employment when:

• It failed to allow her remain at work with accommodation identified by her from 20^th April 2015, and, by the medical personnel subsequently.

• The respondent decided to keep the complainant on sick leave, when she was deemed fit to return to work with accommodation.

• In not allowing her avail of the grievance policy

The complainant contends that the respondent’s conduct had the purpose of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her. This conduct is prohibited under the Acts.

In conclusion the complainant contends that she has established facts from which it may be presumed that the respondent discriminated against her on grounds of disability when it failed to provide her with the required accommodation to enable her to return to work.

Summary of Respondent’s Case:

The respondent provided a substantial written submission.

The respondent submits that on 14 April 2015 the complainant commenced a period of certified sick leave that lasted for four days. The medical certificate noted ‘back pain’. However, there was no report received of an injury prior to that period of sick leave. The complainant wrote to the Director of Nursing (‘DON’) on 20 April 2015 requesting a move from Ward X on which she had been working due to her back pain. The DON requested that the complainant be referred to the occupational health nurse in the Hospital. That appointment took place on 23 April 2015. The occupational health nurse issued her report on 29 April 2015 recommending that the complainant be referred to the occupational health doctor.

The complainant was again seen by the occupational health nurse on 21 May 2015. In the intervening period, apart from three days certified sick leave from 29 April to 03 May, the complainant attended to her work and normal duties without complaint. On or about 16 May 2015 she did mention to her line manager that she would like to move off the ward, but her manager advised her that would be a matter for the DON, who was then on leave. The complainant told her manager that in any event she was contemplating another job opportunity in another hospital.

The occupational health nurse issued her report on the 22 May 2015, indicating that the complainant should not perform any heavy lifting tasks. The complainant met with the DON and the respondent’s HR Manager in an unscheduled meeting on 27 May 2015. The complainant has made a number of allegations in her claim as to what was discussed at that meeting which are entirely refuted by the respondent. At that meeting the complainant was informed that the respondent would look at moving her to the Day Unit and it would take a day or two because another member of staff would have to be moved to accommodate that. The HR Manager gave direct evidence to support this version of events.

As part of the consideration of moving the complainant to a lighter duty location, the respondent again sent her to the occupational health doctor to determine her exact capabilities. The doctor responded that she would not be able to lift weights heavier than 10 kilograms. As the respondent could not guarantee that restriction in any location in the Hospital, the complainant was put on paid leave until a risk assessment could be completed to identify possible roles for the complainant. The risk assessor advised that it was not possible to do such an assessment in light of the complainant’s weight restriction and that she should be reassessed when her condition had improved following treatment.

The complainant was placed on sick leave with full pay on 4 June 2015, which continued until 1st September 2015 when the complainant was placed on the respondent’s sick pay scheme (half pay) until she returned to work with effect from 15 October 2015.

During the period prior to her departure on paid leave, the complainant’s union representative wrote to the respondent attempting to initiate Stage 3 of the respondent’s Grievance Procedure on behalf of the complainant and indicating that she had suffered from an ‘occupational injury’. This was the first mention of an injury by the complainant or by anyone acting on her behalf. The respondent advised that as the complainant had not initiated any grievance under the Grievance Policy prior to that date, it would not be appropriate to proceed directly to Stage 3 of the process. The complainant was invited to a Stage 1 grievance meeting in line with the respondent’s Grievance Policy but this meeting was declined by the complainant.

During the period of her absence from the workplace the complainant claimed Illness Benefit from the Department of Social Protection, receiving €4,449.20 during the period of her absence. The respondent’s clear policy is that when employees on sick leave absence claim Illness Benefit, they advise their employer of that fact and the employee’s pay is adjusted accordingly. The complainant failed to do so and, consequently, has been overpaid by the amount outlined above. To date the complainant has refused to return to the monies overpaid to her.

The respondent maintained contact with the complainant throughout the period of her absence and to send her for updated assessments by the occupational health doctor.

Once the complainant indicated to the respondent that her condition was improving, it arranged an appointment with the respondent’s occupational health doctor. This followed the complainant attending her own consultant which the occupational Doctor requested her GP to arrange, and which she advised the respondent of on 7 October 2015 of her attendance and that she had received a report. An occupational health appointment was arranged for the 14th of October 2015. Further assessments, including a risk assessment followed and the complainant was returned to work in the respondent’s Day Unit in late November, with her return to full pay backdated to 15 October, 2015.

The complainant was reviewed by the respondent’s occupational health nurse in March 2016 following a request by the complainant to return to working in a rehabilitation ward. The respondent referred her to the occupational health doctor who deemed the complainant fit to remain working in the Day Unit but not in a rehabilitation ward.

The complainant again requested a return to a rehabilitation ward in May 2016 and the respondent arranged an ergonomic assessment to be performed on 26 May 2016 and again referred her to the occupational health doctor on 30 May 2016. At that time the doctor declared the complainant fit to return to a rehabilitation ward but that due to her history of lower back pain she should report any pain or incident immediately.

The complainant has been working a normal, 39 hour week roster since that date, including overtime and weekend work.

Discrimination and Reasonable Accommodation

The complainant has alleged, inter alia, that she was discriminated against by the respondent on the grounds that it failed to accommodate her disability. The respondent rejects that allegation.

The respondent submits that it followed appropriate protocols in relation to assessing the complainant’s medical condition and the effect, if any, it might have on her ability to carry out the normal functions of her role. It was only when appropriate medical reports were presented to the respondent that it was able to make that assessment. In doing so it also carried out an additional risk assessment that indicated that the complainant’s condition could not be accommodated in any of the respondent’s locations at that time.

The respondent contends that the complainant was glad to have her job back with the respondent, and the respondent was happy to re-employ the complainant given her skill and experience as a nurse. In fact, although the Hospital’s policies required it to initially rehire the complainant on a two year fixed-term contract, it agreed in July 2015 to reinstate her original permanent contract with no break and recognise her service back to 2004.

In the intervening period between the initial communications from the complainant in relation to her back issues, the complainant did not present ongoing or continuous certificates from her own physician during that period. In fact, the complainant only presented medical certificates for eight of the thirty one working days from 14 April 2015 to 4 June 2015.

While the complainant was absent on sick leave the respondent continued her on full pay for a three month period, despite no obligation to do so. Upon her return it back dated her full pay by a number of weeks. It maintained continuous contact with her throughout, with a view to returning her to work.

The respondent submits that to establish a case for discrimination, the complainant must show that the respondent failed to determine the factual position in relation to her capability and failed to consider what, if any, special treatment or facilities may be available to allow her to continue working. The respondent submits that the complainant is unable to show either of these tests to be satisfied and that her claim for discrimination should be dismissed.

The respondent does not believe the complainant has evidence to establish a prima facie case. According to the respondent for discrimination to be an issue, the employer first has to be aware of a disability (as distinct from a medical condition). The employer would have to make adequate inquiries to establish fully the factual position in relation to the employee’s capability. The first independent medical indication that the employer had that the complainant’s back issues might affect her ability to undertake her job was on 21 May 2015 following receipt of the occupational health nurse’s report of that date. Immediately following that report, the complainant was referred to the occupational health doctor for further assessment. Following that assessment, the complainant was placed on sick leave until her condition improved to the extent that she could return to work, even on a modified basis.

The initial decision to place the complainant on paid sick leave was taken in order to allow a risk assessment to be done to determine what duties the complainant could undertake, i.e. to determine the scope of reasonable accommodation available. The risk assessment professional made it clear that while the complainant was restricted to lifting no more than 10 kilos, no risk assessment could be done. As the Hospital was not in a position to guarantee that any role for a staff nurse would not involve that requirement, no accommodation of the complainant could be made. The respondent stated that other roles were considered but that no such roles exist.

The respondent submits that it continued to have the complainant assessed as she underwent therapy and treatment and her condition improved. Once it had improved to the stage that a risk assessment could be undertaken, the process of returning the complainant to work began.

At no stage during this process is the complainant able to highlight any event that occurred or decision that was taken that resulted in discrimination towards her. The respondent submits that it has acted towards the complainant at all times with concern for her welfare and for her continued successful employment with them.

The respondent complied with its obligations to conduct a two stage assessment of the complainant’s capability and, once that was established, what accommodations could be put in place to continue working. In this case, the nature of the complainant’s condition was such that while accommodations were not available at the outset of that process, they became available as her condition improved, which led to her being returned to work in the respondent’s Day Unit.

The respondent submits that the complainant can establish no prima facie basis for a claim of discrimination that would shift the burden of proof to the respondent. Without prejudice to that position, the respondent submits that even if the complainant were able to do so, the respondent has clearly demonstrated that no discriminatory actions took place.

Victimisation

The respondent denies that the alleged incidents as outlined above took place in the manner suggested by the complainant, or where such actions did take place, as alleged or otherwise, that those actions amount to victimisation within the meaning of the Employment Equality Acts 1998 to 2008.

Referencing the Labour Court has determined in A School v A Worker EDA 122, the respondent submits that the claims of victimisation set out by the complainant relate directly to a relief already claimed under the Acts by this complainant. They are duplicate claims and, as such, the complainant is not permitted to proceed with them in addition to proceeding with her claims in relation to a failure to provide reasonable accommodation.

The respondent contends that the complainant has failed to put forward evidence from which a prima facie case of victimisation is established, that the complainant has failed to demonstrate a causal link between the taking of proceedings or protected act within the meaning of the Acts and the alleged adverse treatment.

In respect of the remaining claims regarding the respondent’s conduct related to the complainant’s grievance, the respondent submits that it followed its policies at all times in that regard. The complainant was twice invited to an initial meeting under the Grievance Policy. She was invited to be accompanied to those meetings by a co-worker or a local union representative. It is the respondent’s normal practice not to involve external union representation until later in the grievance process. The complainant was treated no differently in that regard than any other member of staff who brings forward a grievance.

Throughout this period, the respondent's HR Manager continued to communicate with the complainant’s external union representative in relation to the complainant’s situation and, indeed, communicate with the complainant herself.

In respect of the remaining claim regarding documentation, the respondent submits that it complied with all requests for documentation in an appropriate manner. The respondent follows similar protocols in relation to its other staff and the complainant refutes the allegation that the complainant was victimised in relation to this issue.

In respect of all claims, the respondent makes the following submission:

The respondent denied that any of the actions attributed to it or its management staff above could constitute victimisation as contemplated by the Acts and that the submission of these claims based on the same facts as the complainant’s claims of discrimination and failure to reasonably accommodate are unreasonable and unwarranted and are tantamount to an abuse of process.

Harassment

The complainant has claimed harassment under the Acts on the basis of a number of alleged incidents during the period from 20 April 2015 onwards. It is denied that the alleged incidents in question took place in the manner suggested by the complainant, or where such actions did take place, as alleged or otherwise, that those actions amount to harassment within the meaning of the Employment Equality Acts 1998 to 2008.

The respondent repeats and relies upon its submission in relation to the duplication of claims asserted earlier in relation to victimisation. The complainant is not entitled to seek duplicate reliefs under the Acts arising from the same facts.

Again, in relation to the complainant’s assertions regarding the respondent’s conduct of the Grievance Procedure and provision of documents, the respondent repeats and relies upon the facts set out in paragraphs 42-43 above. The respondent submits that the act alleged, even if they occurred, which is denied, could constitute harassment as contemplated by the Acts or at all.

The respondent also submits that it received no complaint from the complainant under its Dignity at Work Policy as would be appropriate in a case where harassment is being alleged. The respondent submits that it treated the complainant with dignity and respect at all times, and is astonished at the claims set out under this heading and the heading of victimisation.

The respondent denied that any of the actions attributed to it or its management staff above could constitute harassment as contemplated by the Acts and that the submission of these claims based on the same facts as the complainant’s claims of discrimination and failure to reasonably accommodate are unreasonable and unwarranted and are tantamount to an abuse of process.

Findings and Conclusions:

This case revolves around the respondent's reaction to the difficulties experienced by the complainant from April 2015; did the respondent act as a reasonable employer should in relation to dealing with the ability of the complainant to carry out work as it should have?

What should a reasonable employer do when an employee presents with a purported disability?

Firstly, the employer needs to ascertain the existence and extent of the disability. Having ascertained the existence of a disability the employer needs to measure the impact this disability will have on the employees ability to carry out their work; is it possible to make some accommodation that will allow the employee continue in their role or can they be moved to another similar role? All of this should be done in a timely manner.

In this case the complainant first went sick with back troubles on 14^th April 2015. On 20^th April 2015 she asked to be moved from the ward she was working on, which in her opinion required heavy duty lifting. The complainant was referred to the Occupational Health Nurse on 22^nd April 2015. The Occupational Health Nurse recommended that the complainant should not perform heavy lifting. The complainant met the Occupational Health Physician on 4^th June 2015 on the same date she was instructed to go home on full pay. The Occupational Health Physician's report was issued on 11^th June 2015 recommending she do lighter duties only.   Following another Occupational Physician's review on 1^st July 2015 the complainant was deemed fit for desk duty or work which did not entail lifting. On 7^th October 2015 the Occupational Health consultant deemed the complainant fit to return to work. A risk assessment was carried out on 9^th November 2015 and on 25^th November the complainant returned to work in the Day Ward, with back pay to 15^th October 2015. In June 2016 a risk assessment is completed for the Rehabilitation Ward and in July 2016 the complainant was redeployed to the Rehabilitation Ward and has been there since.

In summary the complainant contends that the series of events outlined above demonstrates that the employer did not do what it should have in relation to finding reasonable accommodation for her and instead discriminated against her due to her disability. The complainant contends that the respondent was unreasonably slow in finding a solution to the problem created by her disability. Not finding reasonable accommodation in a timely manner resulted in a financial loss for the complainant. The complainant also contends that allied to the above the employer failed to deal with her grievance in the manner it should have and failed to supply her with information she sought that should have legitimately have been given. In addition the complainant argues that the respondent badly mis-handled the issue of sick pay. By so doing the respondent is guilty of harassing and victimising the complainant and this should be rectified by compensatory redress.

The respondent is adamant that it did what was required of it as a reasonable employer. It set about finding the extent of the complainant's disability, the impact this would have on her ability to work and what accommodation was possible. The respondent contends that at all times it did what was in the best interest of their employee, ensuring that she was not placed in a role which was beyond her physical capabilities, if in doubt the employer chose the prudent course of sending the complainant home until a safe place of work could be found. The respondent denies that it is guilty of harassing or victimising the complainant and asserts that the complainant is pursuing duplicate claims which is not allowed under the Act.

Reasonable Accommodation

Nature and extent of employer’s obligations in certain cases.

Section 16 of the Act, Nature and extent of employer’s obligations in certain cases. States:

(3) ( a ) 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.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

In this case the respondent did eventually provide reasonable accommodation for the complainant. However, I believe the respondent was unreasonably slow in finding such an accommodation.

The respondent has cited The Labour Court case of A Health and Fitness Club V A Worker Det. No. EED037 in arguing that it was required to fully investigate the situation, in a two stage process, before making any decisions on reasonable accommodation. In that case 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.”

I agree with the respondent in its stated responsibilities as outlined by the Labour Court above. However, the onus is on the employer to carry out all such investigations in a timely, proactive manner. This principle was endorsed by the Labour Court in A Government Department V A Worker (ADE-0516), "The duty to provide special treatment or facilities is proactive in nature." The Court decision included the following:

… “I note that it was nearly 6 months after the complainant went on sick leave after she was moved from her office before the respondent had a meeting with the complainant and her union representative and engaged actively in seeking a resolution to the issue. This meeting took place on the 13th of December 2007. I note that the respondent was very slow in responding to IMPACT and before the respondent actively engaged with the issue IMPACT had to raise the matter under the grievance procedures. It is clear from the evidence that the respondent was not proactive in any way in seeking a single office near a toilet for the complainant….. The decision to ignore her request for a single office on her own near a toilet had serious consequences for the complainant in that her condition was exacerbated.”

The implication from the Court is that an employer must act without delay when it has been brought to its attention that reasonable accommodation is required for an employee, suffering from a disability, to carry out their work.

In this case I find that the required pro-activity was missing; the respondent took an unreasonable time to accommodate the complainant's disability. There were too many delays along the way and the complainant suffered as a consequence.

In relation to the allegations of harassment and victimisation I do not believe the complainant has provided the evidence required to prove a prima facie case for either prohibited act.

In order to determine whether the complainant has established a prima facie case a three tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground. Second, she must establish that the specific treatment alleged has actually occurred. Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

The evidence provided by the complainant does not in my view satisfy the third test. The refusal of the employer to meet her with a colleague as opposed to a union official in the first instance is not unreasonable and has nothing to do with the complainant's disability. The delay in providing the data requested does not in my view indicate an attempt to victimise or harass the complainant. The other matters raised, except for the delays which are taken into account in the findings on Reasonable Accommodation, do not in my view amount to harassment of victimisation.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The respondent did provide reasonable accommodation to the complainant with regard to her return to work. However, the respondent failed in its statutory duty to assess the complainant's situation in a timely and pro-active manner pursuant to S. 16(3) of the Acts.  

Estimating the loss of the complainant for the period in question is difficult. The estimates put forward by the complainant and the respondent varied greatly. In the circumstances I order the respondent to pay the complainant the sum of €9,500 (nine thousand, five hundred euro) in compensation for loss of earnings she experienced during the period in question and in respect of the distress she experienced on foot of the delays caused by the respondent failing to provide suitable accommodation in a timely manner.

Dated:   6^th June 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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