Complainant

Respondent

Anonymised Parties

Care Worker

Disability Services Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021557-001

04/09/2018

The Complainant has serious difficulties with attending to the personal care of female services users.   As a result, he has been given a verbal warning and has been out on sick leave since early 2018.

The Complainant has worked as a Care Assistant since 2004 and enjoyed the work and had a good rapport with the service users. In 2009/2010 he worked in a residential setting which had both male and female service users. The policy at the time did not allow male staff to attend to the intimate care plan for female service users. The Complainant then worked in an all-male service and he was happy in that position.     He was transferred out of there in 2017, which transfer he believes was instigated when he spoke up about comments made about the standard of service. He was transferred to another residential setting which had mostly female service users. He was concerned that he would be required to carry out the intimate care plan for female service users and made his concerns known to his manager and HR.   He received a reply from HR on 16th March 2017 advising him that it is a requirement of all care staff to attend to the hygiene needs of all service users, male or female. He was also advised that the Safeguarding Policy and Intimate Care Policy were in place to protect and support staff. The Complainant while still feeling serious concerns, did transfer but he felt stressed and vulnerable in fear his concerns would come to fruition.   Following an informal conversation with the Residential Manager, in November 2017, the Complainant was requested to attend a meeting with her and HR. Following this a disciplinary meeting was held on 6th February 2018. The result of this was a verbal warning effective from 14th March 2018 to remain on his file for 6 months. The verbal warning was appealed but the appeal failed.   It is argued that the Complainant had an impeccable record for over 15 years and he was a diligent worker who got on well with service users and staff. For most of his career he was precluded or not required to work with female service users in the provision of personal hygiene needs. The situation in which he found himself has caused stress and extreme discomfort. He agrees it is not a phobia but it is of sufficient seriousness to state he has an aversion to carrying out this task. He has had to attend GP and avail of counselling services and submits that the imposition of a disciplinary sanction is not appropriate in all the circumstances of what started out as a hypothetical situation.

As per normal staffing requirements, the Complainant was requested to move to another work location in March 2017. On 15th March 2017 the Complainant emailed HR requesting not to be moved and not to undertake the task of assisting female service users with personal care needs. The Respondent has outlined that requirements of all staff to attend to the hygiene needs of all service users, male and female and policies and procedures are in place to safeguard and support all service users and staff.   The Respondent met with the Complainant both informally and formally with various solutions such as providing a second staff member to assist when carrying out the personal care needs of female service users. However, the Complainant refused this offer. The Complainant attended Medmark on 12th February 2018 and was deemed fit to work without restrictions. The Complainant was invited to attend a disciplinary meeting on 6th February 2018 the result of which was a verbal warning.   The Complainant has been absent from 13th January 2018 to date. A further Medmark report of 4th April 2018 stated that the reason for his absence was primarily work related issues. The Complainant has refused to attend any more Medmark appointments.

The Company’s position is that best efforts have been made to assist the Complainant in offering that a second staff member be present at all times when he is carrying out personal care needs. However, he has refused this offer and has been absent from work for over 12 months despite being certified as fit for work without restrictions. It is the Respondent’s position that the requirement to attend to the personal needs of female service users is a contractual requirement of the Complainant’s role and no compelling reasons have been presented as to why he should be excused from performing these duties.

Cogent evidence was given by the Complainant during the hearing of the affects attending the intimate care needs of female service users would have on his mental health and his genuine fears. No employer should put an employee in a position where there may be endangerment to his or her mental or physical health.  I note that the Complainant has confirmed that he did not have a phobia, and he has carried out his duties in the past without problems. I note that the past was a different situation where it appears he was required not to work with female service users in the provision of their personal care needs.   I note the Respondent’s point that it has a contractual right to expect that the Complainant carry out the full duties for which he was employed. However, in the job description submitted in relation to the duties and responsibilities of care staff it clearly states that each service user will be treated with dignity and respect in the implementation of their person centred plans. The question arises, how can this be fulfilled in a situation where the care worker clearly cannot attend to the service user’s personal hygiene needs?   I note the medical report dated 4th April 2018, commissioned by the Respondent stated that “the primary barrier” to the Complainant’s return to work “is his ongoing work related issues to which there is no solution”.   The imposition of a verbal warning in circumstances where the Complainant was lodging his grievances and concerns did not obviously provide any solution to the situation, and no amount of disciplinary action will change the fundamental nature of the Complainant’s problem.     I note the Respondent has offered “second staff support” to assist the Complainant in carrying out the duties. This may be something the Complainant could consider in the context of going half way with the Respondent.   However, in the meantime, to resolve the impasse, and taking into account his long service and obvious commitment to the job, some solution must be found which enables him to return to work.                                         I recommend that the Complainant be returned to the payroll from the date of this recommendation and that on a once off special circumstances basis, the Respondent facilitates the Complainant in a residence where his genuine fear around attending female hygiene care is allayed.