Complainant

Respondent

Parties

Ronan Carey

Beaumont Hospital

Complainant

Respondent

Anonymised Parties

A hospital clerical employee

A Hospital

Representatives

Vivian Cullen SIPTU-Trade Union

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017831-001

08/03/2018

The Complainant, in this case, makes a complaint under Section 77 of the Employment Equality Act, 1998. He claims that he was discriminated against on the grounds of his disability, dyslexia. He goes on to claim that the Respondent failed to give adequate consideration to providing reasonable accommodation to him, including access to proper/appropriate training , and that this constituted discrimination on the grounds of disability.

The Complainant commenced employment with the Respondent on the 1st March 2001, as a clerical officer. He informed the Respondent in 2004 that he was dyslexic and that this may be affecting his work performance. He was employed at a Grade 3 level, but in 2006 worked as a Grade 4 clerical officer on an acting basis, for 3 months.

In June 2017, he applied for and was interviewed for a Grade 4 position. He was successful and was offered a Grade 4 position in the Accident & Emergency – Medical Department. This provided for a probationary period of 6 months, during which the contract may be terminated, or the period of probation extended for a further 3 months, at the discretion of management.

In November 2017 the 6-month probationary review took place. In this meeting the Complainant was advised of his performance-related mistakes, which the Respondent said constituted risk issues to patient registration in the Emergency Department reception desk. This was a risk to patients and to the hospital. The Respondent confirmed that the Complainant had not passed the Probationary review and as such, would revert to his Grade 3 role.

The Respondent was advised of the Complainant’s disability and it was decided that he should have further training and be returned to the role in the Emergency Department. Subsequently it was considered, by the Respondent, that the performance had not improved sufficiently and that the mistakes made again were putting the patients and the hospital at risk. It was decided that, in the words of the Department Support Manager that ”the fact the Emergency Department frontline reception does not lend itself to accommodating performance issues due to the risk involved to patients”, that the Complainant could not be further accommodated in this role to which he had been promoted. Those who interviewed him for the role and appointed him to the vacancy were not aware of his Dyslexia. They say that he advised the hospital authorities of his dyslexia in 2004 on the basis that it would never be recorded on his personnel files or discussed generally.

The Complainant says that dyslexia is classed as a disability in the Employment Equality Acts, 1998-2004. This, he says, means that that a person with this disability has the same protections as someone with a physical or sensory disability. He says that the Respondent discriminated against him on the grounds of this disability and failed to provide reasonable accommodation as required.

He says that the Labour Court has consistently applied a high standard in cases where reasonable accommodation is concerned. The minimum requirement being that employers are “proactive in relation to the matter in the sense of acquiring the material information and different options be discussed with affected employees or their medical advisers” – O’Sullivan v the Department of Justice, Equality and Law Reform (Dec-E2004-076).

He says that the type of reasonable accommodation required must be determined on a case-by-case basis to meet the specific work-related needs of the individual worker. In his case the complainant says that there should have been proper training provided together with whatever assistance and support was required in his new job role to help him achieve his full potential and fully integrate and participate in the Grade 4 role to which he had been promoted. He says the Respondent could have used the probationary period to explore and discuss with him any special needs he had and how they might be accommodated. He says that the statement from the Respondent that “the fact that the Emergency Department frontline reception environment does not lend itself to accommodating performance issues due to the risk to patients” demonstrates the prevailing and underlying narrative that denies reasonable accommodation to the Complainant.

The Respondent, they say, simply said that the Complainant did not pass the probation review, was not considered for a Grade 4 position and reverted him to the Grade 3 from whence he was promoted. The Complainant says that this result of the review represented a punitive sanction and not the response of an organisation espousing equal opportunities in the workplace. He says that fear of discrimination and lack of understanding from the Respondent or potential negative responses was a factor when he applied for the Grade 4 position.

Finally he says that not declaring or disclosing his disability when applying for the promotion does not change the Respondent’s obligations to him when he was successful in his application. He says that the Respondent is in breach of the terms of the Employment Equality Act 1998-2004 and is seeking reinstatement to the Grade 4 post with restoration of the loss suffered for the period of demotion.

The Respondent says that the Complainant commenced work at the Respondent hospital on the 5th March 2001, initially as a Grade 3 Clerical Officer.

They say that he did not immediately disclose his disability and that they only became aware of the Complainant’s dyslexia when he was called to a meeting to discuss his poor work performance in 2004. The Complainant said that his poor performance might be attributable to his dyslexia. The Respondent says that on the day following this meeting they referred the Complainant to Occupational Health to obtain advice on what accommodation was required to assist the Complainant in achieving the required performance level.

They say that the Complainant was moved to another Grade 3 role which was less stressful and where there was less immediacy in the tasks required to be performed.

The referral to the Occupational Health Department or reference to dyslexia was confidential and were not recorded on the Complainant’s file. The Complainant subsequently said, at a meeting on the 15th February 2018, that he had not disclosed his dyslexia on his pre-employment application.

They say that in May 2007 they ran a recruitment campaign to create panels for Grade 4 Officers. The Complainant. The Complainant applied for and was offered a promotion to the Grade 4 officer position. They say that it would have been explained to the Complainant that this was a” front line” role, the main duty of which was patient registration. They say it was vital that patient details were recorded accurately on the hospital’s IT system. The resultant information on their file accompanies the patient from the entry point in A&E to the department to which, eventually, the patient may be assigned. Accuracy failure may result in patient information not being reconciled to the patient file, which in turn creates significant clinical risk of adverse incidents affecting patient safety. It can also adversely impact on patient billing.

They say that there was a probationary period of 6 months applying to this role during which the contract could be terminated and that “confirmation of your appointment to the post is subject to the successful completion of the probationary review.

The probation commenced on the 6th June 2017 and the probation policy set out the processes and procedures intended to support and develop new and promoted employees “by providing fair and equitable review processes during the probationary period”. The aim of these processes is “to ensure new staff are appropriately skilled to satisfy the requirements of the position they hold with the hospital”. The probationary policy, for a promoted employee, says that he will be reviewed to determine if the employee “meets the requirements of the position” and the Respondent may “terminate his contract, determine the employee is not suitable for promotion or extend the probation period”.

They say that in line with the policy the Complainant was provided with a probation plan which set out goals to be achieved during the probation period. Those goals included “proficient use of all Emergency Department systems e.g. the hospital information system, and to achieve standards as instructed by line manager and carry out the functions required of the role, in an efficient, reliable, timely and safe manner in the interests of patient safety and service demands”.

They say that the Claimant received thorough instruction in all the component parts of the role, backed up with support and advice from colleagues in the department. They say that despite this there were constant difficulties with the Complainant’s performance, with:

(a)    Errors in patient registration details

(b)    Incorrect recording of GP referrals

(c)     Incorrect recording of presenting diagnosis or complaint of patient.

They say that the errors were significant and contributed to delays in patients receiving appropriate and timely care.

They say that on the 4th September 2017, the Complainant attended a probationary review meeting with the Respondent to review the Complainant’s progress and any accommodation that the Respondent could make to allow the Complainant to complete his probationary period. The Complainant was advised by the Respondent that various members of staff had raised concerns about the complainant’s standard of work and had reported incidences of poor performance. The complainant was advised of the potentially serious risk to patients. They say that the complainant accepted that he had made “quite a few mistakes” and apologised for those mistakes.

They say that the problems were such that they had to move the complainant to the Nurses Station where the complainant performed a number of ad hoc tasks, not involving the registration of patients. This role was not a Grade 4 role. It was more akin to a Grade 3 role. They say that this arrangement was put in place as a precautionary patient safety measure and to allow the respondent to consider, with the complainant what more could be done to assist him to reach the required standard in the role to which he was assigned. They say they also arranged for further training and agreed a further review of the complainant’s progress two weeks hence from this training.

They say that prior to the concerns raised the Complainant’s supervisors in the Emergency Department were not aware of the complainant’s dyslexia. The information was not provided by the complainant prior to, or when accepting the promotion. The complainant’s condition was brought to the attention of the Respondent by his union representative, following the raising of the performance concerns. The complainant subsequently confirmed this to his supervisor.

The Respondent says that the complainant knew the demands of the role and the functional limitations inherent in his disability, but that he remained silent in the certain knowledge that he would struggle in a very demanding highly pressurised role, where accuracy and patient throughput are absolutely essential to the proper functioning of the Emergency Department.

They say that subsequent to this – on the 11th September 2017 - the complainant was returned to his role in the Emergency Department where he would be given further training, by a different trainer. The complainant, they say, confirmed that he was happy with proposals, and again asked that there would be no reference to his dyslexia on his personnel file. They say that they advised him that, to ensure patient safety, his file would have to be updated to refer to his limitations to perform the full range of duties as required for the Grade 4 role, as a result of his dyslexia. On the 12th September 2017 he was advised, at a probationary review meeting, that failure to achieve a satisfactory level of performance would result in the complainant being unable to satisfactorily complete his probationary period.

They say that the role performance of the complainant was closely monitored in the period 18th – 26th September 2017 and that there were 7 significant errors in registration.

They say that further training was provided on the 2nd and 3rd of October 2017, but that there were further serious errors.

Following this the Respondent says they could not ignore the situation or count on colleagues to identify the complainant’s errors. They decided to relocate him to the filing room in the Emergency Department and gave him limited duties. They say that despite these reductions in his responsibilities he failed to achieve the standards required of a Grade 4 officer

The Complainant was invited to a final probation review meeting on the 23rd November 2017. He was accompanied by his union representative and advised that while he was provided with adequate training he had failed to meet the required standard required of a Grade 4 officer and that he would revert to his Grade 3 role from the 27th November 2017.

They say the complainant lodged a complaint through his union representative stating that he had “not been afforded reasonable accommodation” and was appealing the decision to revert him to his Grade 3 job on this basis. The Respondent says that while the Probationary Policy does not provide for a right of appeal for a decision on whether it has been passed, the respondent agreed to deal with the matter in accordance with the Grievance Procedure.

They say that two further stage appeals were used by the complainant. The issues of “Reasonable Accommodation”, of the adequacy of the training, the question as to whether the training had been signed off by HR, the qualification of the trainers to train, were raised at these meetings and answered. They say that, “finally, the Complainant was afforded the opportunity of additional training upon disclosure of his dyslexia to management and was returned to his duties in the Emergency Department. This resulted in no improvement. A balance needs to be made between accommodation made and the significant risk to patient safety when errors are made during patient registration. In providing further training, after which further errors were made, the Respondent had discharged the legal requirement to make reasonable accommodation.

They say that providing the Complainant with accommodation in the context of his disability would require more information on the level of the disability notified. To pursue this the respondent, to assist the complainant, offered to cover the cost of an assessment by an Education Psychologist, provided by the Dyslexia Association of Ireland, or an independent, private educational psychologist.

The Complainant was referred to an independent psychologist on the 26th February 2018 and a report was received on the 15th March 2018. The Respondent confirms that it is committed to supporting the Complainant to developing and advancing in employment in line with the guidance contained in this report.

In its legal submission the respondent says in relation to the Equality Complaint that Section 16 of the Employment Equality Acts, 1998 outlines the nature and extent of the Respondent’s obligations in certain cases to persons having a disability, as follows:

“16(1) Nothing in this shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position or to provide training or experience to an individual in relation to a position, if the individual—

(a)    Will not undertake (or as the case may be, continue to undertake) the duties attached to that position or will not accept (or as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or

(b)    Is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

16(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 with 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.

In this context account would be taken of the financial and other costs, the scale of the resources of the employer’s business and the possibility of obtaining public funding or other assistance.

With reference to the facts in relation to this situation the Respondent submits that the Complainant and Respondent owe mutual obligations to one another. Yet, they say that the Complainant stayed silent on his disability until the frequency and severity of his errors became evident. This forced the Respondent to address his shortcomings as part of the probationary process. They cite DEC-E2011-146 A Complainant v A Community Development Project, the Equality Tribunal noted that the requirement of employers to accommodate individuals with a learning difficulty is coupled with a corresponding obligation on the employee’s part to provide any information or guidance in their possession that would enable the employer to provide the accommodation. The Tribunal held:

“There is an onus on that person to inform the employer of the existence of their disability and given that appropriate measures required will differ from person to person, to provide the employer with any information or guidance in their possession that would facilitate the provision of those measures”.

The Respondent submits that short of his supervisors accessing the Complainant’s personnel records contrary to his expressed wishes it did everything they could to support the Complainant by monitoring his performance and providing extra training throughout his probationary period and then engaging with the complainant, in regular discussion, about his disability. When the discussion about his disability was finally enabled the Respondent engaged with the Complainant in understanding, through external psychological assessment the extent of the complainant’s disability and have committed to working with the Complainant within the terms of the report received, in terms of the nature of the opportunities that he pursues in the future. The Respondent has committed to facilitating the complainant to achieve his future career goals within the hospital.

The complaint, made by the complainant in this case is that the Respondent did not provided “reasonable accommodation” to the Complainant, thereby enabling him, with such accommodation, to succeed in the role to which he had been promoted. The Complainant says that such reasonable accommodation is required unconditionally under Section 16(b) of the Employment Equality Act, 2004. The Respondent says that it has repeatedly made reasonable efforts to assist the complainant by providing training to assist him in achieving the standard of accuracy in creating records for incoming patients and in bearing the assessment costs, for psychological assessment, once they were made aware of the disability. In presenting its case the Respondent cited the case of Nano Nagle School v Marie Daly [2018] IECA 11, to make the point that Section 16(4) of the Act does not place an obligation on the Respondent to remove core duties of the job for which the employee has been employed, such as to substantially alter the character of the job. They say that the core job into which the complainant was promoted was the registration of patients. They say that this is the vital core of the job and that failure by an employee to deliver accuracy in this job, can have significant difficulties in the patient’s passage through the hospital, in terms, ultimately, of correct medication, with all its attendant dangers. They say that they discovered serious mistakes before they became aware of the complainant’s disability and afterwards and in both circumstances responded with training to help the complainant avoid the registration mistakes. They say he was not able to avoid the mistakes and that they had no choice, in the context of patient safety and the avoidance of litigation, to take the complainant out of the role.

They say that this would normally result in dismissal from the hospital, but they took the complainant’s almost 17 years of employment at the hospital into account and reverted him to his role prior to promotion, with a commitment to continue reasonable accommodation in working with the guidelines given in the psychologist’s report to enhance his promotion prospects.

I find that the Respondent has done everything reasonable within the letter and spirit of the Employment Equality Acts 1998-2004 in terms of providing “reasonable accommodation” to the Complainant. I also accept that the Respondent has a duty of care, in these circumstances, to the patients registering at the hospital and their safety. It is clear to me that throughout the period from appointment to the role to the decision to revert him to the Grade 3 role that there were too many fundamental mistakes made by the Complainant, that training and retraining did not correct and that it was most unlikely that he could be put back into the role into which he was promoted.

I expect that the Respondent will work, in an earnest way with the Complainant, to address the issues that have arisen with regard to his disability, to prepare him for future promotion opportunities. I would expect that this work by both parties will yield results within the next 12 months.

I find, therefore, that the complaint fails.