Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Marcus Dowling (BL)                  

John Carroll (solicitor)

Loughlin Deegan (solicitor)  

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00002195-001

13/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00002195-002

13/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004447-001

13/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004447-002

13/05/2016

The Complainant was employed as a nurse by the Respondent from the 3rd November 1995 to 12th January 2016.

The Complainant filed a number of complaints under the following legislation:

CA-00002195-001 - Payment of Wages Act, 1991

This Complaint was withdrawn by the Complainant.

CA-00002195-002: Organisation of Working Time Act 1997

This Complaint was withdrawn by the Complainant.

CA-00004447-001: Unfair Dismissal Act 1977

This Complaint was withdrawn by the Complainant.

CA-00004447-002: Employment Equality Act, 1998

The Complainant presented evidence in relation to this complaint.

She alleges that that she was the subject of constructive discriminatory dismissal, contrary to section 2 of the 1998 Act and that the Respondent failed to provide reasonable accommodation, contrary to section 77 of the 1998 Act.

She filed a complaint with the WRC on the 13th May 2016.

The Complainant is a fifty-year old nurse employed by the Respondent for nearly 30 years. She holds the title of a Senior Registered Nurse. She was employed full-time in a permanent position by the Respondent. The Complainant is an Intellectual Disability and General Trained Nurse who worked with patients who have learning, behavioural, social intellectual and /or medical and psychiatric needs or disabilities.

The Complainant was suffering from a disability. The disability is in line with section 2(1) of the Employment Equality Acts 1998.   The Complainant’s disability impacted upon her ability to work in areas where she would be involved in manual handling of patients or where she was at risk of physical assault or would be subjected to stress.

On the 19th January 2015, EK wrote to the Complainant stating that nursing staff assigned to low or medium support areas are being reassigned to high dependence areas on the basis that skilled nursing input would be more critical there but also stating:

“this is not to suggest that nursing input is no longer pertinent in our sleep over areas rather that it is less critical”

The letter purported to notify the Complainant that she would be moved in March or April 2015 albeit that the placement was unclear. This letter was highly surprising as nurses had worked in these areas for 27 years. The Complainant believed that she was being moved because of her vocalising the issues described above. BW, who held a similar position to the Complainant, had likewise been very vocal and this letter affected her too.

On the 5th February 2015, six residents of 1 RC, including MR, wrote a handwritten letter to EK stating:

“Dear Eileen,

I am writing this letter on behalf of all the residents in RC.   We are not happy about our nurses being taken away from this house. We have a lot of health problems wrong with us and we need our nurses to take proper care of us and we always had nurses to take care of us.   We don’t want any care workers coming into our house. Who is making all these decisions to make changes? How were these decisions decided on? What training will these staff have to help us with all our problems? My aunty, put me here and she always wanted the best care for me and not to have care workers that doesn’t have any experience to be a nurse. If this matter is not sorted out soon, I will ask the Minister to work on it for us. We are all very upset about all of this so please sort it out for us soon”.

In or around this time the Complainant received an undated letter for EK stating that her placement in 1 RC would cease on the 26th July 2015 and that she was being reassigned to GL in North Dublin from 28th July 2015. The letter stated:

“I realise that you are on sick leave currently and my not have a return to work date determined, however that will be your slot whenever you are fit to return to work”

The Complainant was very concerned due to her disability about her ability to work with the patients at GL as they could cause injury to her. As is set out below, the Complainant voiced her concerns to management and through her union. The Complainant notified the residents two weeks later that she would be leaving.

In June 2015, the Complainant, who was suffering from stress, was on her way home from work when she fell ill. It was a neurological episode where all the left side of her body went limp and she could not speak. She was brought to hospital by ambulance and diagnosed with Transient Ischemic Attack or TIA or a paraplegic Migraine.

The Complainant attended her GP and was advised to take sick leave. On the 5th June 2015, the Complainant attended Occupational Health for assessment upon referral by the Respondent. The letter written by Dr. AK of Occupational Health referred to the Complainant’s previous medical history, her recent hospital admission which required her to take time away from work and outlined that the Complainant is experiencing a high level of work related stress, which was causing her much stress and anxiety. The doctor wrote the following:

“Given the Complainant’s recent hospital admission, I have advised her to contact Management and organise a meeting to discuss the work-related issues and to prevent a further deterioration to her health at this time.

I have advised the Complainant that the HSE and Management would not expect her to continue working in an environment that would make her become unwell.

I have requested a report from her Specialist which will provide me with further information on her condition and care plan.

From the consultation today, I find the Complainant unfit for work and have arranged to review her on receipt of her Specialist Report.”

On the 16th June 2015, the Complainant’s Consultant General and Breast/Endocrine Surgeon wrote a letter stating that working in areas which involved manual handling or involve physical activity with respect to patient care were not possible for the Complainant considering her bilateral breast reconstructions and which were showing decline. Vigorous physical activity was not appropriate for the Complainant.

The Complainant ultimately finished in RH on Monday the 20th July 2015. She took annual leave from 27th July 2015 to 10th August 2015. On Wednesday 5th August 2015, she contacted NM in Occupational Health regarding her relocation to the Resource Centre. On the 5th August 2015, the Complainant spoke to AC in Allocations to discuss areas proposed for reassignment i.e. the Resource Centre and GL. The Complainant voiced her concerns in relation to the risks she would be putting herself at and said that she felt her move to the Resource Centre was inappropriate as a placement for her and argued that given she had worked in the Community for over 13 years, she should be accommodated back into the community, particularly considering her disability. As for GH, she pointed out to Ms. C that it had ten challenging behaviour residents, most of whom would have come from locked units in the past.

On Thursday, the 6th August 2015, the Complainant received a phone call from AC once again offering her the Resource Centre and once again the Complainant discussed with her that it was inappropriate as she would still be putting herself at risk of assault and the fact that all the areas of the centre were closed and the only remaining ones open were the Gym and Tuas Nua (kitchen)and they had no involvement in those areas. All Staff from the Resource Centre were deployed into the house/units due to chronic staff shortages.

On Saturday 8th August 2015, the Complainant received a phone call from AC who continued to offer her the Resource Centre despite the Complainant’s request to be reasonably accommodated.

On Monday, 10th August 2015, the Complainant spoke to NM in Occupational Health and explained her situation. NM rang AC and JR. Ms NC phoned the Complainant telling her that she would have to try the Resource Centre and that there was nothing she could do. The Complainant phone JR in Allocations to say that she would be commencing duty the following day, Tuesday 11th August 2015.   Mr. JR indicated that he would get AC to phone the Complainant back. Between 2.00pm and 4.00pm the Complainant phoned her Union Representatives from the Psychiatric Nursing Association. She discussed the situation with him.  

On Tuesday 11th August 2015, the Complainant started in the Resource Centre. At 9.20am the Complainant went to see EK in her office to discuss the inappropriate placement to the Resource Centre. She discussed the fact that she would be working with residents that could potentially assault her and that she would be having more surgery. She discussed her previous surgery and other disabilities. Ms. EK appeared indifferent to what the Complainant was saying and said that the only position she could offer the Complainant was one at GL and that she should start work there and see what she thought. The Complainant requested to be placed back in the Community, but EK stated that she could not be seen to be making allowance. The Complainant argued to no avail that other people had been accommodated and that there were nurses working in the same house for 12 years.   Ms EK showed no empathy for the Complainant’s situation and the meeting lasted about 15 minutes.

The Complainant went to GL and spoke to two of the nurses on duty. The nurses appeared to be very stressed. They discussed the type of residents (10 in number) they had and the problems associated with them. There had been several assaults on staff and near misses and all the residents were capable of assaulting. The last incident report was of a knife taken to a staff nurse. Another resident called the police on a staff member accusing her of assault and the nurse in question had to give a statement.   This resident had previously had a knife to the Complainant and made several verbal threats to the Complainant when she worked in another area of Portrane in the past. One of the residents there had a previous history of rape and had sexually assaulted and attempted to rape a nurse while on duty.   He had always been kept in a locked unit prior to and after this episode. The Complainant had worked in that area – RH just hours before that incident had occurred, when she finished up her night shift. The Consultant Psychiatrist, Dr. N had warned that the patient should always be kept in a locked unit and that there should never be any female staff on duty there. The Complainant was very shocked to see him in GL walking around and allowed to attend the Resource Centre unaccompanied. The two female staff on duty were totally unaware of his previous history and shocked that he would be located in GL, an open House. One of the nurses said to the Complainant that GL was one of the most stressful places she ever worked in and said that it was totally unsuitable for her. They asked the Complainant to look at the Incident Report Books. The Complainant was very alarmed at the types and amounts of incidents. The residents had come from previously locked units. She left Gove Lodge a short time later with a clear indication of its unsuitability.

The Complainant returned to the Resource Centre for the remainder of the day. The manager there left her to her own devices and told her that she was responsible for whomever came down. She found the place degrading for the residents and demoralising. All areas were closed but the residents arrived from the houses and units on the campus and had to sit around annexes off the corridors in hard chars with no activities for them to do. The Complainant was also only entitled to a 30-minute break.

The Complainant received a phone call from the Psychiatric Nursing Association who said he had discussed her case in the head office and that she was being victimised. The Complainant told him that she had found the day very stressful. He indicated that he would raise the matter with EK at a meeting the next day. The Complainant took her blood pressure and it was far too high. The reading was 65 over 116.

On Wednesday morning 12th August 2015, the Complainant went to see her GP (Dr. F) Three blood pressure readings were taken and the readings were all very high. The Complainant had also developed mouth ulcers and a cold sore. Her GP indicated that as the Complainant was very stressed she needed to go on sick leave with stress and hypertension.   The Complainant phoned to the Resource Centre to say she was sick.

Events post sick leave absence

The Complainant contacted Allocations. She spoke to AC and told her that she was now on sick leave and she was told it was a disgrace how the service had treated her.

On the 14th August, the Complainant went to see MMcC in Occupational Health. She explained recent events to the doctor, who recommended that the Complainant contact Staff Care. On the 19th August 2015, the Complainant was approved for critical illness leave. On the 1st September 2015, the Complainant spoke to MG (The Respondent’s Equality Officer) seeking advice about her situation.

On the 5th September 2015, the Complainant spoke to AC. She asked her “where would she be returned to work” and she was told “it would be the Resource Centre”.   The Complainant advised her that this was unsuitable and that she needed to be in the community where she had been for 13 years due to her disability. Ms. C advised her that there may be a vacancy at the end of the month.

On the 8th September, the Complainant sent in a sick certificate to Allocations, along with a letter, requesting that she would be reallocated back in to the community. On the 9th September, the Complainant phoned MG, regarding a possible move to the Naul. He said that he would get back to her.

On the 14th September 2015, she was advised by MG that she would not be relocated to the Naul as she did not want the Complainant to be there alone working at night. She said that only the Resource Centre or GL was on offer. The Complainant stated that there was not medical recommendation that she could not work alone as a lone worker. She was on medication for hypertension and was under the care of a cardiologist and that that she had the all-clear from her neurologist. The Complainant reiterated that both GL and the Resource Centre were very volatile areas, stressful and carried high risk of assault. The Complainant arranged to attend at Occupational Health for the 14 October 2015.

On the 16th September phone Staff Care to get an appointment for counselling. The appointment was arranged for the 22nd September 2015. The Complainant received a phone call from AC and the Complainant asked if there was any possibility of her being exchanged with a staff member from somewhere like Woodlawn to fill a vacancy in the Naul, as EK would not let the Complainant work as a lone worker, even though there were no restrictions on the Complainant working as a lone worker. Ms AC said that she would discuss it with EK.

On the 22nd September, the Complainant spoke to AC and asked if there was an update on the Naul. She said she had no-one marked for there yet. The Complainant asked whether her GP approved her to work alone in the Naul, would she consider this. AC stated that she could not make any promises. On the 1st October 2015, the Complainant attended at her GP. He advised that she could return to work in a suitable environment where there is no risk of assault.

On the 2nd October 2015, the Complainant’s GP wrote, stating that she was fit to return to work, however, the letter stating that she must be accommodated in a suitable environment, i.e. that there should be no risk of assault or injury or the potential to be injured. The Complainant’s cardiologist (DS) had recommended that she should avoid any undue stress at work considering her hypertension. The letter also stated that there are no restrictions on her to work alone.

On the 14th October 2015, the Complainant went to meet with Occupational Health, who recommended that she would be placed in the community with no restrictions on being a lone worker. The doctor also advised that the Complainant was capable of returning to work so long as she was placed in a suitable environment. However, the Respondent continued to fail, refuse and neglect to facilitate the Complainant and to reasonably accommodate her.

On the 28th October 2015, the Complainant spoke to Occupational Health. The Dr spoke to EK regarding a suitable placement. The doctor advised the Complainant to contact Allocations to see where she would be moved to.

On the 26th November 2015, the Complainant received a letter from AC which stated that if the Complainant was fit to resume work, then she should get in contact with her regarding starting work in the Resource Centre in Portrane, which was wholly unsuitable for the Complainant. The Complainant discovered that the vacant posit in the Naul for which she had applied was now filled.

On the 11th December 2015, the Complainant attended Occupational Health who recommended that she should take early retirement on medical grounds, due to the ongoing work related stress, which was causing a deterioration of the Complainant health. She did not want to take early retirement. She wanted to continue to work as is clear from the endeavours that she be reasonably accommodated. She felt that she had no choice but to leave.

On the 12 January 2016, the Complainant retired on medical grounds, albeit that she had at all times wanted to continue in work so long as her disability was reasonably accommodated. The date of cessation on her P45 was the 21st January 2016.

In all the circumstances, the Respondent failed to engaged with the Complainant and instead pushed the Complainant towards retiring on ill-health grounds. The post in the Naul which the Complainant had applied for would have been suitable for her, but the Respondent opted to give it to someone else. No proper risk assessments were taken by the Respondent regarding her assignment to either GL or the Resource Centre. Her employment was brought to end and she was forced to retire early after nearly 30 years of service.

Discriminatory Dismissal

The definition of dismissal within the Employment Quality 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 Complainant must demonstrate that she was entitled to resign from 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.

The Complainant was entitled to terminate her contract of employment by application of both tests.

In a Nurse v. Health Services Executive (December -E2013-111) the Equality tribunal ruled

“Having examined all of the evidence in relation to this matter, I am satisfied that the 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 was been providing acceptable service I this role for ten year” and where her oncologist stated “Ms. G would appear to be managing quite well doing her job as she is currently practicing it, any changes 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 lymphedema. ……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…..I am satisfied that the respondent was not proactive in its approach to her as is required….. and indeed, was tardy in its approach to trying to find her alternative reasonable accommodation. I consider that no appropriate or suitable post were offered to her.….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 29th January 2012. As a result of the lack of constructive engagement by the respondent with the complainant and the unsuitability for the posts offered, I consider that the respondent sought to “freeze her out” so that she wold 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 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 response of her re-location to Unit B…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 know very well and knew how to de-escalate a situation if arose…. 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 though two bouts of cancer. I am cognisant of the irony of an organisation like the HSE, which is a very large and substantial employer with 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 the grounds of her disability.

The Equality Tribunal found that the Respondent did constructively dismiss the Complainant.

Failure to provide reasonable accommodation

Section 16(3) of the Acts states:

“(a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, and 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 measure 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”.

The Complainant was not provided with reasonable accommodation in the workplace in relation to her disability.

A striking analogy can be drawn between what happened to the Complainant in the present case and the facts of A Nurse v Health Service Executive where the Equality Tribunal ruled:

“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 not being moved on the basis of developing her skill set given that she only had a few years to go unit 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. Event 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) giving that she has been doing this apparently without adverse consequence for over six and 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 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.

The Respondent failed to properly engage with its duty to consider whether or not the Complainant could reasonably be accommodated by the implementation of appropriate measures.

It is submitted that reasonable accommodation with the meaning of Section 16 does not mean taking steps to enable the Complainant do all of her job or that unless the Respondent is in a position to put steps in place to enable the Complainant to do the entirety of her job, it had no further obligation to her. Accordingly, the Respondent never engaged with the concept of adapting or changing the job to fit with the Complainant’s disability. The Respondent never properly engaged with its obligations under the Act. The Respondent did not entertain any representations regarding how she might be accommodated. The Labour Court in its decision in Humphries v Westwood Fitness Club case had spelt out the steps appropriate for such consultation (the Labour Court was not being over ruled by the Circuit Court on this point.

The Acts requires that the employers take appropriate measures to accommodate persons with a disability “unless the measures would impose a disproportionate burden” The burden on the employer should be viewed with regard to the financial resources of the employer, the scale of the costs in accommodating the person with a disability, and the possible resources available in the form of public funding or such like. The Complainant was a person with a disability whose needs were not properly or fairly considered or met by the Respondent. The Respondent is part of the State. The Complainant’s request to return to work on a part-time basis was not adequately explored or facilitated. As stated above, the failure to adopt the appropriate procedures deprives the Respondent of any disproportionate burden type defence.

Conclusions

It is submitted that in all the circumstances the Complainant was discriminated against on the grounds of disability and was subjected to a discriminatory dismissal contrary to Section 77 of the Employment Equality Act 1998. The Complainant was not reasonably accommodated by the Respondent.

Most of the services provided by the HSE that are similar to those provided by at Resource Centre are not provided by nurses. They are provided by healthcare assistants. In 2015 (and today) the St. JS had an acute shortage of nurses.   Ms. K decided to deploy healthcare assistants to all roles that could be carried out by healthcare assistants so that she could redeploy nurses to roles that required nurses.

The rationale for the decision to reorganise the services is emphasised by paragraph 4 of the Complainant’s own submission.

It says “Ms. McC effectively worked as a carer who assisted the clients with independent living”. The Complainant was not employed as a carer. She was employed as a nurse in a service that had an acute shortage of nurses. She was paid a nurse’s salary, rather than that of a healthcare assistant.   Ms. K made a rational and appropriate decision that all four of the nurses – not limited to the Complainant - who could be replaced by healthcare assistants should be so replaced so that four experienced nurses could be called upon to carry out nursing duties.

The Complainant was informed of her impending redeployment by letter dated 19 January 2015. This letter provided ample notice of the impending redeployment. The redeployment was expected to take pace in late March or early April 2015. At the time, Ms. K did not know the location to which the Complainant wold be redeployed.

The four nurses who had been informed of their impending redeployment understandably did not want to be redeployed to the more challenging roles to which they were likely to be deployed in the other parts of the services. The redeployment had a significant industrial relations-impact because the nurses would be moving from night work (during which they were paid night-shift premiums) to other shift patterns with lower (or no) shift premiums.

The four nurses opposed the redeployment through their union, the Psychiatric Nurses Association (PNA). The respondent implemented the agreed procedures that are in place under the Haddington Road Agreement to address such matters.

Informal consultation occurred in the weeks after the four nurses were informed of their redeployment.   Formal consultation with the PNA took place by means of several meetings between management and the PNA in the period between 25th February 2015 and July 2015. Agreement had not been reached by July 2015. In line with the dispute resolution provisions of the Haddington Road Agreement, the four nurses were redeployed subject to the outcome of any collective process that the PNA might invoke.

The PNA referred the matter to the process established under Haddington Road Agreement. A Joint Review Group was established.   This group was comprised of representatives from HSE management, the PNA and an external intellectual disability service. The Group concluded its review on 20th January 2016.

The outcome of the deliberations of the Joint Review Group was an acceptance that the redeployment had occurred and would not be reversed. The parties accepted that there had been “poor communication” between the parties.

The PNA is the union of which the Complainant is a member. The Joint Review Group process did not include any finding that the redeployment of the four nurses was victimisation of the Complainant or that the redeployment was in any way targeted at the Complainant. The PNA did not allege any such victimisation either before or during the process.   The redeployment was addressed as a normal collective industrial dispute and was ultimately resolved with a collective agreement.

During the period between February and July 2015, Ms K offered the Complainant the opportunity to be redeployed to a community-based resident, GH. At that time, the Complainant was attending at work in the normal way and had not requested any reasonable accommodation for a disability.   However, the offer of the position at GH is significant because GH is a community-based resident. It was similar to some of the houses in which the Complainant would later – in the autumn of 2015 – request to work. The Complainant rejected the offer of redeployment to GH.

Period of sick leave June - July 2015 and return in July – August 2015

The Complainant commenced a period of sick leave on 2nd June 2015 that continued until 10th July 2015. The Complainant attended the respondent’s Occupational Health Department on the 5th June 2016. She was certified unfit to work.   The certificate referred to her “previous medical history” and to “work-related stress”. Neither this certificate, nor any previous certificate, had included any information that would give rise to a concern that the Complainant would have any difficulty with lifting or engaging in physical activity.

On or about 5trh July 2015, Ms. K wrote to the Complainant (in a letter that is not dated) to inform her of the location to which she was redeployed. The Complainant was redeployed to an on-campus residential house called GL. GL at the time had 10 residents. It had a staff complement of 3 nursing staff and 2 healthcare assistants. While at times not all of the staff members would be present, its staff members would never be working alone. The residents were middle-aged. Some of the residents’ behaviour could be challenging in common with that of many people with mental health problems and with which RNIDs are trained to work.

TheComplainant returned to work at The Resource Centre on the 10th July 2015. She attended a further Occupational Health Department assessment on 17th July 2015. The certificate recommended that the Complainant should not take up the role to which she had been redeployed (namely GL) on the grounds that she had concerns that the area had “high physical demands and volatile patients”.

The medical certificate said that the Complainant was “fit to work with restrictions being that she can work in an area of no manual handling with low physical activity”.

It appears that the certification provided by the respondent’s Occupational Health Department were consistent with the certification provided by the Complainant’s own medical advisers. In the Complainant’s submission, the Complainant submits that her own “Consultant General and Breast/Endocrine surgeon wrote a letter stating that working in areas which involve manual handling or involve physical activity with respect to patient care were not possible” for her, and that “vigorous or physical activity was not appropriate” for her.

This certification posed a significant challenge to Ms. K. The Complainant is a RNID. There are very few roles to which a RNID can be deployed in which it can be guaranteed that he or she will have no manual handling responsibilities or low physical activity. The best accommodation that could be reached to ensure that she would not need to engage in manual handling or significant physical activity would be if she was deployed to a role in which other nurses and other staff were present, so that they could be assigned the tasks of the role in which lifting and physical activity were necessary.

For that reason, Ms. K decided not to redeploy the Complainant to GL but instead to deploy the Complainant to a vacancy at the Resource Centre. The Resource Centre is a day-care centre in which up to 30 members work each day. Ms. K had already accommodated other nurses who have disabilities that restrict them from doing those tasks of their role that entail significant physical activity.   Those employees are not required to engage in manual handling or physical activities. The tasks in that regard are reassigned to other members of staff. Ms. K believed that the redeployment of the Complainant achieved the reasonable accommodation necessary in the Complainant’s case.

The Complainant’s last day at work at Resource Centre was 20th July 2015. She took her normally-scheduled days off and then annual leave until 10th August 2015.

The Complainant worked in the Resource Centre for one day after her return from leave, namely on 11th August 2015. She started her shift at 8.30am. She called Ms K early in the morning of that day and asked to meet with her.   Ms. K had a busy schedule but made time almost immediately to see the Complainant at 9.20am.

The Complainant complained that working in a day-only centre such as the Resource Centre meant foregoing shift work and the ensuring shift premiums. She explained that she was a single mother who had recently changed homes and she needed shift premiums.

Ms. K was attentive to, and supportive of, the Complainant. She was willing to discuss alternative options with the Complainant. She suggested that the Complainant reconsider her refusal to take up the role at GL. Ms. K believed that the Complainant had an incorrect impression of GL, and that its residents were not as challenging as the Complainant feared. Ms. K suggested that the Complainant visit GL and speak with its manager, AK. She could then form a better view about whether she might like to work there.   Working in GL would allow the Complainant to maintain some of her premiums, because night work, Sunday work and work on public holidays would be available. Because she would never be working alone, the Complainant would be very unlikely to be in a situation where she would need to lift or carry a service user, so GL would amount to reasonable accommodation in respect of the Complainant.

Furthermore, in an emergency a very large number of staff would be immediately available to assist her, because GL Is on the campus of St. I. Staff members working on the St. I’s campus wear personal alarms that operated by a pull cord. In an emergency, a staff member can pull his or her cord and colleagues will attend in seconds. No equivalent support can be offered in off-campus residences.

The Complainant went to vis GL. Ms. K did not expect that to be the last work on the matter. She remained available to discuss matters further with the Complainant. Unfortunately, the Complainant never made contact with Ms. K again.

The Complainant’s concerns about being redeployed to the Resource Centre were fundamentally financial concerns around the loss of premium payments and Ms K was supportive and constructive in her engagement with the Complainant.

It appears from the Complainant’s submission that she did not attend GL on the 11th August 2016. Her submission presents a grossly distorted impression of GL that demonises that service users who reside there. The Complainant incorrectly asserts that one service user, GB, has “a previous history of rape”. GB does not have a previous history of rape. He was, in 1993, involved in a serious incident during a period in which had had significant mental health problems. In that incident, he attempted to sexually assault a nurse. That was a serious incident and was treated as such by the respondent. The event prompted a psychiatric review and a change in GB’s treatment plan.   In the intervening 24 years since that incident, no further sexual assault or attempted sexual assault by GB has occurred.

The Complainant asserts that a “knife was taken to the staff nurse (“UB”). That statement gives the impression that UB was stabbed. UB was not stabbed. There was an occasion when a service user, SM did brandish a butter knife at UB, but on that occasion SM then left the building without hurting anyone.

The Complainant assets that a service user, CQ, “had previously held a knife to the Complainant. If that incident happened, then the Complainant failed in her duty to record and report the incident. While there are numerous verbal incidents relating to CQ there is no recorded incident of any physical assault by CQ on anyone.

In any event, Ms. K never insisted that the Complainant work at GL. Ms. K’s belief expressed to the Complainant was that the Complainant’s unwillingness to work in GL was based on an inaccurate understanding of what GL was like. Ms. K encouraged the Complainant to reconsider her preconceptions about GL.   However, if the Complainant did not wish to work in GL, Ms. K was clear that she was not forcing the Complainant to work there. The Complainant had been redeployed to the Resource Centre, which was a location that accommodated the Complainant’s disabilities.

The Complainant’s submission conveys a distorted impression of the Resource Centre. The Complainant refer to the fact that there were no activities for the service users on the day on which the Complainant worked there and she describes the Resource Centre as “degrading for the residents and demoralising”.

It is true that the Resource Centre was quiet on the single day on which the Complainant worked there. That was because the Resource Centre does not provide its full range of activities during August. The services provided during August are reduced in order to facilitate staff holidays. The closure of many activities is well advertised to service users. Sone service users nevertheless attend the Resource Centre during those days. The building is open and some services, including a Montessori service, a gym service and a coffee dock remain open during August.

The Resource Centre has been recognised as an excellent service for service users. As part of its statutory remit to inspect approved centres, the Mental Health Commission made unannounced inspections of St. Joseph’s Services on 30th November, 1 and 2 December 2015. It graded the Resource Centre as “excellent” and furnished a full and comprehensive report to that effect.

All of these facts about the Resource Centre are well known to the Complainant. Her submission provides an entirely misleading impression of the Resource Centre.

The Complainant’s complaint about the Resource Centre is essentially that it was too quiet.   That is directly contradictory to her complaint in this case. If the Resource Centre was quiet and unchallenging, then the Complainant’s redeployment to the Resource Centre cannot be other than “Reasonable accommodation” for the Complainant, whose disabilities related to stress, hypertension, inability to lift and concern about assault.

Period of illness from August 2015

The Complainant did not return to work after 11th August 2015. She commenced a period of sick leave on 12 August 2015 that would end when she was certified as being permanently incapable of working and receiving early retirement on grounds of that incapability.

During that period of illness, the Complainant made several requests to be redeployed from the Resource Centre to off-campus residential houses. Some of these requests were made personally to members of the respondent’s staff and some were made through her PNA representative.   One of the requests were that she be allowed to fill a vacancy in a house in Naul.

Ms. K considered that redeployment to Naul would not be appropriate. The Complainant would, in Naul, have been required to work nights on her own in the building as a “lone working”. In the event that (for example) a service user slipped and fell the Complainant would not (because of her disabilities) have been able to lift the service user. Having regard to its statutory and common-lay obligations to staff members and service user, redeployment to Naul would not have been appropriate.

The likelihood of the Complainant having to lift or physically assist a service user was greater than average in Naul because one of the residents is blind. He frequently needs physical assistance, such as by needing to lean heavily on his nurses and healthcare assistants.

TheComplainant’s submission assets that she should have been considered for redeployment to other off-campus locations, such as those at WL or BL. There were no vacancies at those locations at that time. If it had been the case that no other reasonable accommodation could be made for the Complainant, Ms. K would have considered the possibility of redeploying an existing employee out of locations such as those and redeploying the Complainant into them. All relevant considerations would have needed to be made, including that some of the residents in those locations have significant challenging behaviour which may have given rise to concerns for the Complainant, having regard to the particular nature of her disabilities.

However, that consideration did not arise because Ms. K had appropriate redeployment options available at locations at which there were vacancies.

During that period of illness, on the 2nd October 2015, the Complainant’s GP prepared a report that said that the Complainant was fit for work. The certificate was conditional. It said “However, she must be accommodated in a suitable environment, i.e. there should be no risk of assault or injury or the potential to be injured”. It also provided that “It would be appropriate that she avoids any undue stress at work in light of her hypertension. “The GP’s certificate also said that “there are no restrictions on the Complainant working alone.

This is a point on which the Complainant has placed considerable weight in these proceedings.   It appears to be the Complainant’s case that, because the available medical advice did not restrict the Complainant working alone, that therefore Ms. K was at fault for not redeploying the Complainant to the location of the Complainant’s choosing at which she would work alone. If that is the Complainant’s case, then it misunderstands the nature of Ms. K’s concerns about redeploying the Complainant to a location in which she would be both working alone and providing care to service users.

Ms. K did not at that time have any concern about having the Complainant work alone per se. Ms. K had insuperable concerns about having the Complainant work alone in circumstances in which she might need to carry out lifting or other significant physical activity. There were no available locations to which the Complainant could be redeployed in which she could both work alone and avoid the possibility of having to engage in lifting or other physical activity.

The most appropriate reasonable accommodation in respect of the Complainant was to redeploy her to a location in which she had colleagues to support her. In such a location, if lifting or other physical activity was required, then her colleagues could carry out those physical activities. Those colleagues would also be available to address situations in which the risk of challenging behaviour may arise. The Resource Centre met those requirements. Ms. K was open to considering any other options that also met those requirements.

Ms. K arranged for the Complainant to attend its own Occupational Health Department on the 14th October 2015. The Complainant was certified as being “medically fit to return to her job at this time” but again this fitness was conditional on her “avoiding physical restraints”. The Occupational Health Department certified her as being “fit for work including lone working”.

The same concerns arose from the Occupational Health Department report as arose from the GP’s Certificate. At that time, appropriate reasonable accommodation had been made for the Complainant (by her redeployment to the Resource Centre). Ms. K anticipated that the Complainant would return to work. Ms. K was committed to continuing to work with the Complainant to find a mutually acceptable location to which she could be redeployed namely one that would reasonably accommodate her disability and one that would preserve, as much as possible, the shift premiums to which she had attached significant weight.

Ending of the Complainant employment

The Complainant did not return to work, despite being certified fit to do so (with conditions).   The respondent’s management wrote to her on the 25th November 2015 and 11th December 2015 requesting that she contact the respondent to arrange a return to work.

The Complainant applied for ill-health retirement on or about the 13th January 2016.   On that date, Dr. Sisson of the respondent’s Occupational Health Department wrote to the respondent in relation to the Complainant’s application. Dr. Sisson wrote, among other things:

“Unfortunately, and regrettable Ms. McCabe has not recovered sufficiently from her recent illness for her return to work in her current position as a staff nurse with the organisation. Her condition is considered to be permanent and as such I would now support a retirement on the grounds of ill health effective immediately”.

The Complainant’s employment with the respondent ended shortly thereafter. In addition to her 27 years’ service in the pension scheme, she was given 5,443 additional years’ credit in the pension scheme on grounds of her permanent infirmity. She received a lump sum payment of almost €79,964. She is in receipt of an annual payment of €26,654.

The present-day value of an annual pension payment of €26,654 to a woman aged 51 years is €890,000.

The Complainant alleges that that she was the subject of constructive discriminatory dismissal, contrary to section 2 of the 1998 Act and that the Respondent failed to provide reasonable accommodation, contrary to section 16 of the 1998 Act.

Section 2 of the 1998 Act defines dismissal as follows:

“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, and “dismissed” shall be construed accordingly”.

The Complainant applied for ill-health retirement on or about the 13th January 2016. She was mentally certified as being permanently unfit on grounds to carry- out duties of her role by Dr. Lynda Sisson. The Complainant retired and is in receipt of a substantial retirement pension.

The Complainant alleges that the Respondent had no choice but to retire on an ill-health pension because the Respondent failed to provide reasonable accommodation in relation to her disabilities.

Based on the evidence presented by the parties at the hearing, I find that the Respondent made every effort to reasonably accommodate the Complainant in the workplace.

Based on the Complainant’s medical history, she was offered the opportunity to work in the Resource Centre. This facility was the most appropriate reasonable accommodation available, where she had colleagues to support her if lifting or other physical activity was required. Working in the Resource Centre would mean foregoing her shift work and shift premiums. She declined the offer to work in this centre.

The Complainant suggested other location that she favoured, but they were found to be unsuitable based on her disabilities and medical conditions.

Based on the evidence presented by both parties, I find that the complaints are not well-founded.

The Complainant was not constructively dismissed by the Respondent. Her employment terminated because she was deemed to be unfit to continue working because of her medical condition and as a result, she was paid an ill-health pension.

The Complainant was reasonably accommodated by the Respondent. She was offered the opportunity to work in the Resource Centre. This facility was the most appropriate reasonable accommodation available, where she had colleagues to support her if lifting or other physical activity was required. However, she declined the offer to work in this centre.

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